Commonwealth: Service and Execution of Process Act 1992 (Cth)

Service and Execution of Process Act 1992 No. 172, 1992 Compilation No. 19 Compilation date: 11 May 2018 Includes amendments up to: Act No. 31, 2018 Registered: 22 May 2018 About this compilation This compilation This is a compilation of the Service and Execution of Process Act 1992 that shows the text of the law as amended and in force on 11 May 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Copies 5 Territories regarded as States 6 Act to bind Crown 7 Territories 8 Effect on the operation of other laws 8A Application of the Criminal Code 9 Service on companies and registered bodies 10 Service on other bodies corporate 11 Proof of service 12 Effect of service Part 2—Service of process in civil and criminal proceedings Division 1—Initiating process in civil proceedings 13 Application of Division 14 Meaning of appearance 15 Initiating process may be served in any part of Australia 16 Information to be provided 17 Time for appearance 18 Appearance to state address for service 19 Security for costs 20 Stay of proceedings 21 No restraint of proceedings Division 2—Initiating process in criminal proceedings 22 Application of Division 23 Initiating process 24 Initiating process may be served in any part of Australia 25 Time for service Division 3—Other process 26 Application of Division 27 Other process may be served in any part of Australia Part 3—Service of subpoenas Division 1—Service of subpoenas generally 28 Application of Division 29 Subpoenas may be served in any part of Australia 30 Time for service 31 Information to be provided 32 Expenses 33 Application for relief from subpoena 34 Subpoenas not requiring attendance 35 Entitlement to expenses 36 Persons under restraint 37 Issue of warrants for non‑compliance with subpoenas Division 2—Service of subpoenas addressed to persons in prison 38 Application of Division 39 Order for production 40 Service of order for production 41 Information to be provided 42 Expenses 43 Application for relief from subpoena 44 Application for relief from order for production 45 Entitlement to expenses 46 Custody of prisoner etc. Part 4—Service of process of tribunals Division 1—Preliminary 47 Interpretation Division 2—Service of initiating and other process related to adjudicative functions 48 Application of Division 49 Meaning of appearance 50 Initiating process may be served in any part of Australia 51 Information to be provided 52 Time for appearance 53 Appearance to state address for service 54 Security for costs 55 Other process may be served in any part of Australia Division 3—Service of subpoenas in the performance of adjudicative functions Subdivision A—Service of subpoenas generally 56 Application of Subdivision 57 Order for leave 58 Subpoenas may be served in any part of Australia 59 Information to be provided 60 Expenses 61 Application for relief from subpoena 62 Subpoenas not requiring attendance 63 Entitlement to expenses 64 Persons under restraint 65 Issue of warrants for non‑compliance with subpoenas Subdivision B—Service of subpoenas addressed to persons in prison 66 Application of Subdivision 67 Order for production 68 Service of order for production 69 Information to be provided 70 Expenses 71 Application for relief from subpoena 72 Application for relief from order for production 73 Entitlement to expenses 74 Custody of prisoner etc. Division 4—Service of subpoenas in the performance of investigative functions Subdivision A—Service of subpoenas generally 75 Application of Subdivision 76 Order for leave 77 Application of other provisions Subdivision B—Service of subpoenas addressed to persons in prison 78 Application of Subdivision 79 Order for production 80 Application of other provisions Part 5—Execution of warrants Division 1—General 81 Application of Division 81A Interpretation 82 Persons subject to warrants may be apprehended 83 Procedure after apprehension 84 Additional provisions relating to persons under restraint 85 Procedure on remand on bail 85A Notification when persons are released or remanded on bail 86 Review 87 Entitlement to expenses 88 Law applicable to grant etc. of bail 89 Custody of persons etc. 90 Release of persons unnecessarily detained Division 2—Execution of warrants issued by tribunals 91 Application of Division 92 Application of Division 1 to certain warrants issued by tribunals 93 Orders for the execution of warrants 94 Additional provisions relating to warrants issued in the performance of investigative functions Division 2A—Transit through State in execution of warrant 94A Application of Division 94B Effect of warrant 94C Applicable laws relating to escape from custody 94D Powers of person executing the warrant Division 3—Suppression orders 95 Interpretation 96 Suppression orders 97 Duration etc. of suppression orders 98 Interim suppression orders 99 Variation and revocation of suppression orders 100 Applications for suppression orders etc. 101 Appeals against suppression orders 102 Institution of appeals 103 Disobedience of suppression orders Part 6—Judgments 104 Interpretation 105 Enforcement of judgments 106 Stay may be granted 107 Costs 108 Interest 109 Rules of private international law not to apply Part 7—Enforcement of fines imposed by courts of summary jurisdiction Division 1—Preliminary 110 Definitions 111 Constitution of courts Division 2—Registration and enforcement of fines 112 Request for registration 113 Registration 114 Effect of registration Division 3—Amendment, cancellation and challenge to imposition etc. 115 Amendment of registration initiated by originating State 116 Cancellation of registration initiated by originating State 117 Payment of fine to the registering State 118 Cancellation of registration initiated by registering State 119 Effect of cancellation of registration 120 Challenge to imposition of fine Division 4—Miscellaneous 121 Operation of State laws 122 Saving Part 8—Miscellaneous 127 Matters of state 128 Claim of public interest immunity not precluded 129 Custodians to assist prisoners served with subpoenas 130 Jurisdiction not limited by locality 131 Constitution of courts 132 Regulations etc. Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for the service and execution, throughout the Commonwealth, of process of courts and tribunals, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Service and Execution of Process Act 1992. 2 Commencement (1) Section 1 and this section commence on the day on which this Act receives the Royal Assent. (2) Paragraph 7(2)(a) commences when section 10 of the Territories Law Reform Act 1992 commences. (3) Paragraph 7(2)(b) commences when section 19 of the Territories Law Reform Act 1992 commences. (4) Subject to subsection (5), the remaining provisions of this Act commence on a day to be fixed by Proclamation. (5) If those provisions do not commence under subsection (4) within the period of 4 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3 Interpretation (1) In this Act, unless the contrary intention appears: adjudicative function, in relation to a tribunal, means the function of determining the rights or liabilities of a person in a proceeding in which there are 2 or more parties, including the function of making a determination: (a) altering those rights or liabilities; or (b) relating to any matters of a kind mentioned in section 48. appearance means: (a) in Division 1 of Part 2—an appearance within the meaning of section 14; and (b) in Division 2 of Part 4—an appearance within the meaning of section 49. audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places. audiovisual link means facilities that enable audio and visual communication between persons in different places. Australia includes the external Territories. authority means a judge, magistrate, coroner or officer of a court appointed or holding office under a law of a State. Note: Section 81A alters the meaning of this term for the purposes of Part 5. authority of issue, in relation to a process, means the authority by which the process was issued. civil proceeding means a proceeding other than a criminal proceeding. company means a company incorporated, or taken to be incorporated, under the Corporations Act 2001. court, except in Part 7, means a court of a State and includes an authority exercising the powers of such a court. court of issue, in relation to a process, means the court by which the process was issued. criminal proceeding means: (a) a prosecution for an offence; or (b) a procedure, other than a prosecution, that, under a law of a State, may be used: (i) to determine liability for an offence; or (ii) to impose a penalty for an offence; or (c) a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph (b); but does not include: (d) a claim for compensation; or (e) a proceeding under proceeds of crime legislation. cross‑border laws means the following: (a) the cross border laws of a participating jurisdiction, within the meaning of the Cross‑Border Justice Act 2008 of Western Australia; (b) the laws of a State, or provisions of a law of a State, that are prescribed by the regulations for the purposes of this paragraph. 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 of the Commonwealth or of a State; or (f) prejudice the proper functioning of the government of the Commonwealth or of 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, an order under subsection 83(8) or an order under section 86 that is similar to an order under that paragraph, include the reasonable costs of: (a) necessary travel to and from, and accommodation at, the place where complying with the subpoena or order is required; and (b) finding, collating and producing a document or thing; for the purposes of complying with the subpoena or order. initiating process means a process: (a) by which a proceeding is commenced; or (b) by reference to which a person becomes a party to a proceeding. investigative function, in relation to a tribunal, means the function of conducting an inquiry other than an inquiry conducted in connection with the performance of an adjudicative function. judgment means: (a) a judgment, decree or order given, entered or made by a court in a civil proceeding under which: (i) a sum of money is made payable; or (ii) a person is required to do or not to do an act or thing (other than the payment of money); not being an order made under proceeds of crime legislation (other than a pecuniary penalty order); or (b) an order made by a court in a criminal proceeding under which: (i) a sum of money is made payable as a debt due to the Crown in right of the Commonwealth or a State; or (ii) a person is required to do or not to do an act or thing (other than the payment of money); or (c) an order made by a court for the forfeiture of bail; or (d) an order that: (i) is made by a tribunal in connection with the performance of an adjudicative function; and (ii) is enforceable without an order of a court (whether or not the order made by the tribunal must be registered or filed in a court in order to be enforceable); or (e) an order, decree or judgment registered in a court under the Foreign Judgments Act 1991 or the Trans‑Tasman Proceedings Act 2010; whether or not the judgment, decree or order is final, but does not include: (f) a judgment, decree or order of a court of a foreign country that has been registered in a court in Australia otherwise than under the Foreign Judgments Act 1991 or the Trans‑Tasman Proceedings Act 2010; or (g) an order, however described, imposing a fine; or (h) an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or (i) an order relating to the guardianship of a person who is incapable of managing his or her personal affairs; or (j) an order relating to the management of the property of a person who is incapable of managing that property; or (k) an order relating to the care, control or welfare of a child; or (l) an order that, if contravened by the person to whom it is directed, will render the person liable to conviction for an offence in the State in which the order was made. magistrate, except in sections 57 and 67, includes: (a) a justice of the peace who has power to issue warrants under a law of the State in which the justice holds that office; and (b) a person who is appointed under section 120 of the Magistrates' Court Act 1989 of Victoria as a bail justice or is a bail justice because of holding a prescribed office within the meaning of section 121 of that Act. order for production means an order made under section 39, 67 or 79. person under restraint means a person who: (a) is on bail; or (b) has been conditionally released from prison (whether on parole, licence, work release, home detention or otherwise) before the end of a term of imprisonment to which he or she has been sentenced; or (c) is subject to the supervision of another person under a probation order; or (d) is serving a period of home detention or a term of imprisonment by way of periodic detention; or (e) is subject to: (i) a community service order; or (ii) a community based order; or (iii) an attendance order; or (iv) a work and development order; or (v) any other restriction on his or her movements, imposed by law or by order of a court, that is inconsistent with the person complying with a subpoena served on the person under this Act; but does not include a person who is in prison. place of issue, in relation to a process, means the State in which the process was issued. prescribed means prescribed by the regulations or by rules regulating the practice and procedure of a court. prison includes a gaol, lock‑up or other place of detention. proceeding, except in Part 4, means a proceeding in a court or before an authority (other than a tribunal that is an authority) and includes: (a) an interlocutory or similar proceeding; and (b) a proceeding heard in chambers. proceeds of crime legislation means: (a) the Proceeds of Crime Act 1987; or (b) the Proceeds of Crime Act 2002; or (c) a law of a State that is a corresponding law within the meaning of the Proceeds of Crime Act 2002. registered body has the same meaning as it has in section 601CX of the Corporations Act 2001. State includes the meaning given in section 5. subpoena, except in Part 4, means a process that requires a person to do one or both of the following: (a) to give oral evidence before a court, authority or person; (b) to produce a document or thing to a court, authority or person; but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents. 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; and 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 a judge, magistrate, coroner or officer of a court. Note: Section 81A alters the meaning of this term for the purposes of Part 5. warrant (except in the definition of authority in section 81A) means a process issued by a court, authority or tribunal in accordance with: (aa) this Act; or (a) a law of a State; or (b) the provisions of such a law as applied by subsection 68(1) of the Judiciary Act 1903; that authorises the apprehension of a person. Note: Section 81A alters the meaning of this term for the purposes of Part 5. (2) For the purposes of the definition of 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 authorised, by or under the law by or under which the body was established, to take evidence on oath or affirmation. (3) A reference in this Act to a subpoena issued by a court or tribunal is a reference to a subpoena issued by or out of the court or tribunal. (4) A reference in this Act to allowances and travelling expenses includes a reference to vouchers tendered in substitution for the whole or part of those allowances and travelling expenses. (5) A reference in this Act to a law of the Commonwealth or a State is a reference to a law (whether written or unwritten) of or in force in the Commonwealth or the State, as the case may be. (6) A reference in this Act to a person who is in prison does not include a reference to a person who is serving a term of imprisonment by way of periodic detention. (7) For the purposes of this Act, if a Territory does not have its own police force, the police force performing the policing functions of the Territory is taken to be the police force of the Territory. 4 Copies (1) For the purposes of this Act, a document that is identical to a process, order or document in all material respects is taken to be a copy of the process, order or document. (2) A document that purports to be a copy of a process, order or document is presumed to be such a copy unless evidence is adduced that raises real doubt that it is such a copy. 5 Territories regarded as States (1) For the purposes of this Act, each Territory (other than a Territory that, under subsection 7(2), is taken to be part of a State or another Territory) is to be regarded as a State. (2) For the purposes of the application of this Act in relation to a Territory (other than the Australian Capital Territory), the reference to the Governor of a State in paragraph (a) of the definition of tribunal in subsection 3(1) is a reference to the Administrator of the Territory. 6 Act to bind Crown This Act binds the Crown in all its capacities. 7 Territories (1) This Act extends to each external Territory. (2) For the purposes of this Act: (a) the Christmas Island Territory is taken to be part of Western Australia; and (b) the Territory of Cocos (Keeling) Islands is taken to be part of Western Australia; and (c) the Jervis Bay Territory, the Australian Antarctic Territory and the Territory of Heard Island and McDonald Islands are taken to be part of the Australian Capital Territory; and (d) the Territory of Ashmore and Cartier Islands is taken to be part of the Northern Territory; and (e) the Coral Sea Islands Territory is taken to be part of Norfolk Island. 8 Effect on the operation of other laws (1) This Act does not affect a decision of a court or tribunal to allow substituted service of a process. (2) This Act does not affect the operation of: (a) the Transfer of Prisoners Act 1983, or a law of a State that, in an instrument published under section 5 of that Act, is declared to be a State transfer law of the State; or (b) the Removal of Prisoners (Territories) Act 1923; or (c) the Removal of Prisoners (Australian Capital Territory) Act 1968 of the Australian Capital Territory; or (d) the Family Law Act 1975, or the regulations or Rules of Court made under that Act. (3) This Act does not affect the operation of a law of a State so far as the law provides for service of a subpoena on a person: (a) only after permission or leave has been given; or (b) only if it is served not less than a specified number of days, being greater than 14 days, before the date for compliance with the subpoena. (3A) This Act: (a) does not affect the operation of the cross‑border laws; and (b) does not apply to a person in relation to a particular matter if the cross‑border laws would, apart from this Act, apply to the person in relation to the matter. (4) Subject to this Act, this Act applies to the exclusion of a law of a State (the relevant State) with respect to: (a) the service or execution in another State of process of the relevant State that is process to which this Act applies; or (b) the service or execution in the relevant State of process of another State that is process to which this Act applies; or (c) the service or execution in another State of judgments of a court of the relevant State that are judgments to which this Act applies; or (d) the service or execution in the relevant State of judgments of a court of another State that are judgments to which this Act applies; or (e) the service or execution in another State of judgments to which this Act applies that are orders of a tribunal of the relevant State; or (f) the service or execution in the relevant State of judgments to which this Act applies that are orders of a tribunal of another State. 8A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 9 Service on companies and registered bodies (1) Service of a process, order or document under this Act on a company is to be effected by leaving it at, or by sending it by post to, the company's registered office. (2) Without limiting the operation of subsection (1), a process, order or document may be served on a company by delivering a copy of it personally to a director of the company who resides in Australia. (3) If a liquidator of a company has been appointed, a process, order or document may be served on the company by leaving it at, or by sending it by post to, the address of the liquidator's office in the most recent notice of that address lodged under the Corporations Act 2001. (4A) If an administrator of a company has been appointed, a process, order or document may be served on the company by leaving it at, or by sending it by post to, the address of the administrator in the most recent notice of that address lodged under the Corporations Act 2001. (5) Service of a process, order or document under this Act on a registered body is to be effected by leaving it at, or by sending it by post to, the body's registered office. (6) If the registered body is a registered foreign company, a process, order or document may be served by leaving it at, or by sending it by post to: (a) the address of a local agent of the foreign company notice of which has been lodged under the Corporations Act 2001; or (b) if a notice or notices of a change or alteration in that address has or have been so lodged—the address shown in that last‑mentioned notice or the later or latest of those last‑mentioned notices. (7) Without limiting the operation of subsections (5) and (6), a process, order or document may be served on a registered body by delivering a copy of it personally to each of 2 directors of the registered body who reside in Australia. (8) If a liquidator of a registered body has been appointed, a process, order or document may be served on the registered body by leaving it at, or by sending it by post to, the last address of the office of the liquidator notice of which has been lodged under the Corporations Act 2001. (8A) Without limiting the operation of this section, if the process, order or document is not an initiating process or subpoena, service may be effected at the address for service of the company or registered body in the proceedings concerned in accordance with any applicable rules of court. (9) Subsections 109X(1) and (2) and section 601CX of the Corporations Act 2001 do not apply to a process, order or document that may be served under this Act. (10) For the purposes of this section: (a) the situation of a company's registered office is to be determined according to Part 2B.5 of the Corporations Act 2001; and (b) the situation of a registered body's registered office is to be determined according to subsection 601CX(2) of the Corporations Act 2001. (11) In this section: director has the same meaning as it has in the Corporations Act 2001. local agent has the same meaning as it has in the Corporations Act 2001. registered foreign company has the same meaning as it has in section 601CX of the Corporations Act 2001. registered office has the same meaning as it has in the Corporations Act 2001. 10 Service on other bodies corporate (1) Service of a process, order or document under this Act may be served on a body corporate that is not a company or a registered body in accordance with this section. (2) If a law of the State in which service is to be effected provides that service may be effected on the body corporate at a particular place, service may be effected by: (a) leaving the process, order or document at that place; or (b) sending the process, order or document to that place by post. (3) If a law of the State in which service is to be effected does not provide that service may be effected on the body corporate at a particular place, service may be effected by: (a) leaving the process, order or document at the head office, a registered office or the principal place of business of the body corporate; or (b) by sending the process, order or document to that office or that place of business by post. (4) Without limiting the operation of this section, if the process, order or document is not an initiating process or subpoena, service may be effected at the address for service of the body corporate in the proceedings concerned in accordance with any applicable rules of court. 11 Proof of service (1) Subject to subsections (2) and (8), service of a process, order or document under this Act is taken to have been proved only if the following are proved: (a) the identity of the person who served it; (b) the time at which and the day on which it was served; (c) the place at which it was served; (d) the way in which it was served; (e) if service was effected in a way that required the person served to be identified—the way in which the person served was identified. (2) Subsection (1) does not apply to service by post. (3) Service of a process, order or document under this Act by post on an individual is taken to have been proved only if the following are proved: (a) it was sent by pre‑paid post to the person's last known address, or the person's address for service in the proceedings concerned; (ab) it was addressed to the person, or, if it was sent to an address for service that is the office of a solicitor, to that solicitor; (b) the day on which it was posted. (4) Service of a process, order or document under this Act by post on a company, a registered body or any other body corporate is taken to have been proved only if the following are proved: (a) it was sent by pre‑paid post to an address for service on the company, registered body or other body corporate under section 9 or 10; (ab) it was addressed to the company, registered body or other body corporate, or, if the address for service is the office of a solicitor, to that solicitor; (b) the day on which it was posted. (5) Service of a process, order or document under this Act 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 (iv) a person who is a barrister or a solicitor, or both; or (b) in any way in which the service might have been proved if it had been effected within the State in which the process, order or document was issued. (6) It is only necessary to call the deponent to give evidence of service if a court, authority or tribunal, or a person appearing before a court, authority or tribunal, so requires. (7) For the purposes of paragraph (1)(e), evidence of a statement that: (a) is made by a person served; and (b) concerns the person's identity or office; is admissible as evidence of the person's identity or office. (8) The court, authority or tribunal before which service on a person is to be proved may dispense with all or any of the requirements of subsection (1) if it is satisfied that personal service of the process, order or document in question was effected on the person. (9) For the purposes of this Act, a document that purports to have been signed by a person acknowledging that the person has received a specified postal article is admissible as evidence that the person received the article. (10) For the purposes of this Act, a document that purports to have been signed by a person acknowledging that a court, authority, tribunal or body for which the person is acting has received a specified postal article is admissible as evidence that the court, authority, tribunal or body received the article. (11) A process, order or document served by post under this Act is presumed to have been served on the fourth day after the day it was posted unless evidence is adduced that raises real doubt that the process, order or document was delivered by post to the person to whom it was addressed within 4 days after the day it was posted. 12 Effect of service Subject to this Act, service of a process under this Act: (a) has the same effect; and (b) may give rise to the same proceedings; as if the process had been served in the place of issue. Part 2—Service of process in civil and criminal proceedings Division 1—Initiating process in civil proceedings 13 Application of Division This Division applies to civil proceedings in a court. 14 Meaning of appearance A reference in this Division to an appearance includes a reference to a notice in writing: (a) that a person served with an initiating process gives to the court of issue; and (b) that contains a statement that the person: (i) acknowledges service of the process; or (ii) intends to make a submission regarding an issue arising in the proceeding in relation to which the process has been issued; or (iii) intends to contest the court's jurisdiction to hear the proceeding; and (c) that: (i) complies with any requirements with which the notice must comply under a law of the place of issue (including rules governing the procedure of the court); or (ii) the court determines to be acceptable despite any non‑compliance with such requirements. 15 Initiating process may be served in any part of Australia (1) An initiating process issued in a State may be served in another State. (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. (3) Service on a company or a registered body must be effected in accordance with section 9. (4) Service on any other body corporate must be effected in accordance with section 10. (5) Service on a body politic (for example, the Commonwealth or a State) must be effected in the same way in which process of the Supreme Court of the State in which service is to be effected may be served on the body politic. 16 Information to be provided Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served. 17 Time for appearance (1) If the person served is required or permitted to enter an appearance under a law of the place of issue, the period after service within which the person may enter an appearance is: (a) whichever is the longer of the following periods: (i) 21 days; (ii) the period in which the appearance would have been required or permitted to be entered if the process had been served in the place of issue; or (b) such shorter period as the court of issue, on application, allows. (1A) If, under a provision (the State provision) of the law of the place of issue, the period in which an appearance is required or permitted to be entered in respect of process served in the place of issue varies according to the distance of the place of service from another place, the period referred to in subparagraph (1)(a)(ii) is to be calculated by reference to the longest distance mentioned in the State provision. (2) The matters that the court must take into account in determining an application to allow a shorter period include: (a) urgency; and (b) the places of residence or business of the parties; and (c) whether a related or similar proceeding has been commenced against the person or another person. 18 Appearance to state address for service (1) An appearance entered after service of the initiating process must state an address within Australia as an address for service. (2) The appearance is effective only if it contains an address for service. (3) The court of issue must set aside the appearance if, on application by the party by whom or on whose behalf the process was served, the court is satisfied that the address for service contained in the appearance is false or misleading. (4) Subsection (3) does not limit the court's power to set aside an appearance. (5) For the purposes of this Act, if the appearance would not have been required to contain an address for service had the initiating process been served in the same State as the State of the court of issue: (a) the appearance is taken to contain an address for service if it states an address of the person entering the appearance; and (b) that address is taken to be the address for service. 19 Security for costs (1) The court may, on application by the person served, order that: (a) the party by whom or on whose behalf the process was served give such security as the court specifies for the first‑mentioned person's costs of and incidental to the proceeding; and (b) the proceeding be stayed until the security is given. (2) Subsection (1) does not limit the court's power to make an order requiring security for costs. 20 Stay of proceedings (1) This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue. (2) The person served may apply to the court of issue for an order staying the proceeding. (3) The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters. (4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include: (a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; and (b) the place where the subject matter of the proceeding is situated; and (c) the financial circumstances of the parties, so far as the court is aware of them; and (d) any agreement between the parties about the court or place in which the proceeding should be instituted; and (e) the law that would be most appropriate to apply in the proceeding; and (f) whether a related or similar proceeding has been commenced against the person served or another person; but do not include the fact that the proceeding was commenced in the place of issue. (5) The court's order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense. (6) The court may determine the application for an order without a hearing unless the applicant or a party objects. (7) For the purposes of determining the application, the court may hold a hearing by audio link or audiovisual link. (8) A person who is entitled to practise as a barrister, solicitor or both before a court in: (a) the place of issue; or (b) another State in which a person is participating in the hearing by audio link or audiovisual link; has a right of audience before the court at the hearing. (9) This section does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3). (10) This section does not affect the operation of: (a) the Jurisdiction of Courts (Cross‑vesting) Act 1987; or (b) a corresponding law of a State. 21 No restraint of proceedings If an initiating process has been served under this Division, a court of a State that is not the place of issue must not restrain a party in the proceeding from taking a step in the proceeding on the ground that the place of issue is not the appropriate forum for the proceeding. Division 2—Initiating process in criminal proceedings 22 Application of Division This Division applies to criminal proceedings. 23 Initiating process In this Division, a reference to initiating process includes a reference to a process, issued in relation to an offence, that first notifies a person that, in specified circumstances: (a) no further action will be taken in relation to the offence; or (b) liability for the offence may be determined without an appearance by the person before a court. 24 Initiating process may be served in any part of Australia (1) An initiating process issued in a State may be served in another State. (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. (3) Service on a company or a registered body must be effected in accordance with section 9. (4) Service on any other body corporate must be effected in accordance with section 10. 25 Time for service (1) If the person served is required or permitted to do an act specified or referred to in the process not later than a particular day, service is only effective if the period between service and that day is not less than: (a) 21 days; or (b) such shorter period as a court or authority, on application, allows. (2) The matters that the court or authority is to take into account in determining an application to allow a shorter period include: (a) urgency; and (b) the place of residence or business of the person to be served; and (c) whether a related or similar proceeding has been commenced against the person or another person. (3) In this section: court or authority means the court in which, or the authority before whom, the proceeding in relation to which an initiating process has been issued will or might be heard. Division 3—Other process 26 Application of Division This Division applies to criminal proceedings and civil proceedings in a court or before an authority. 27 Other process may be served in any part of Australia (1) A process issued in a State, other than an initiating process or a subpoena, may be served in another State. (2) Service on an individual must be effected in the same way as service of such a process in the place of issue. (3) Service on a company or a registered body must be effected in accordance with section 9. (4) Service on any other body corporate must be effected in accordance with section 10. (5) Service on a body politic (for example, the Commonwealth or a State) must be effected in the same way in which process of the Supreme Court of the State in which service is to be effected may be served on the body politic. Part 3—Service of subpoenas Division 1—Service of subpoenas generally 28 Application of Division This Division applies to a subpoena, issued by a court or an authority, that is addressed to a person: (a) who is not in prison; or (b) who is in prison but who need neither attend before the court or authority for the purpose of complying with the subpoena nor give oral evidence, by audio link or audiovisual link, to the court or authority. 29 Subpoenas may be served in any part of Australia (1) A subpoena issued in a State by a court or an authority may be served in another State. (2) Service must be effected in the same way as service of a subpoena in the place of issue. (3) Service is effective only if the subpoena contains an address for service of the person (if any) at whose request the subpoena was issued. 30 Time for service (1) Service of the subpoena is effective only if the period between service and the day on which the person to whom the subpoena is addressed is required to comply with the subpoena is not less than: (a) 14 days; or (b) such shorter period as the court of issue or the authority of issue, on application, allows. (2) The court or authority may allow a shorter period only if it is satisfied that: (a) the giving of the evidence likely to be given by the person to whom the subpoena is addressed, or the production of a document or thing specified in the subpoena, is necessary in the interests of justice; and (b) there will be enough time for the person: (i) to comply with the subpoena without hardship or serious inconvenience; and (ii) to make an application under section 33. (3) In granting an application, the court or authority: (a) is to impose a condition that the subpoena not be served after a specified day; and (b) may impose other conditions. 31 Information to be provided Service of the subpoena is effective only if: (a) copies of such notices as are prescribed; and (b) in a case where an application under paragraph 30(1)(b) has been granted—a copy of the order granting the application; are attached to the subpoena, or the copy of the subpoena, served. 32 Expenses (1) Service of the subpoena is effective only if, 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 sufficient to meet the person's reasonable expenses of complying with the subpoena are paid or tendered to the person. (2) Nothing in this section affects the operation of subsection 11AA(9) of the Christmas Island Act 1958 or subsection 15AC(9) of the Cocos (Keeling) Islands Act 1955. 33 Application for relief from subpoena (1) This section applies if the person served with the subpoena has a right under the law of the place of issue to apply to a court or authority to set aside or obtain other relief in respect of the subpoena. (2) Without limiting the ways in which, under the law of the place of issue, the application may be made, it may be made by transmitting the application to the court or authority by fax. (3) Within 24 hours after making the application, the person must cause a copy of the application to be served on the person (if any) at whose request the subpoena was issued at the person's address for service. (4) For the purposes of calculating the 24 hour period, a day that is: (a) a Saturday; or (b) a Sunday; or (c) a public holiday or bank holiday in the place in which the application is to be served; does not count. (5) Without limiting the ways in which, under the law of the place of issue, service may be effected, it may be effected by transmitting the copy to that address by fax. (6) The court or authority may determine the application without a hearing unless the applicant, or the person (if any) at whose request the subpoena was issued, objects. (7) For the purposes of determining the application, the court or authority may hold a hearing by audio link or audiovisual link. (8) A person who is entitled to practise as a barrister, solicitor or both before a court in: (a) the place of issue of the subpoena; or (b) another State in which a person is participating in the hearing by audio link or audiovisual link; has a right of audience before the court or authority at the hearing. 34 Subpoenas not requiring attendance (1) If the subpoena only requires production of a document or thing, it may be complied with by delivering the document or thing, not less than 24 hours prior to the date for compliance, to the Registrar or Clerk: (a) of the court that issued the subpoena; or (b) of the court of which the authority that issued the subpoena is a member or officer; as the case requires. (2) If the subpoena is complied with in that way, the person to whom the subpoena is addressed is not required to attend the court or authority on the date for compliance. 35 Entitlement to expenses (1) A person served with the subpoena is entitled to payment of an amount equal to the reasonable expenses incurred by the person in complying with the subpoena. (2) The amount must be paid: (a) if the subpoena was issued at the request of a person—by that person; or (b) in any other case—by the State in which the subpoena was issued. (3) The court or authority that issued the subpoena may make orders to ensure that the person complying with the subpoena receives the exact amount of the person's reasonable expenses in so complying. (4) If the subpoena was issued by a court, the orders may be made by an officer of the court if the rules governing the procedure of the court so provide. (5) A reference in this section to the reasonable expenses incurred by a person in complying with a subpoena includes, in the case of a person under restraint, a reference to the reasonable expenses incurred by the person in complying with section 36 (whether or not the person was able to comply with the subpoena). (6) Nothing in this section affects the operation of subsection 11AA(9) of the Christmas Island Act 1958 or subsection 15AC(9) of the Cocos (Keeling) Islands Act 1955. 36 Persons under restraint (1) Service of a subpoena under this Division on a person under restraint does not relieve the person from a restriction or obligation imposed by or under a law of a State on the person because the person is a person under restraint. (2) Subject to subsection (3), action may not be taken against a person under restraint in respect of failure to comply with a subpoena served on the person under this Division if: (a) by leaving, or remaining outside, the State in which the person is under restraint, or a particular place in the State, in order to comply with the subpoena, the person might breach a restriction, or be unable to comply with an obligation, imposed on the person by or under the order or restriction to which the person is subject; and (b) as soon as practicable after being served with the subpoena, the person: (i) has informed the person's supervisor of the service of the subpoena; and (ii) has informed the person (if any) at whose request the subpoena was issued, and the court of issue or authority of issue, of the restriction or obligation; and (c) unless the law of the State does not permit the restriction or obligation to be varied so as to allow the person to comply with the subpoena—the person has taken such steps as are, in all the circumstances (including, in particular, the time left for compliance), reasonable to have the restriction or obligation varied so as to allow the person so to comply; and (d) the person does not succeed in the steps (if any) taken by the person in order to have the restriction or obligation varied in time reasonably to allow compliance with the subpoena; and (e) the person has, as soon as practicable, informed the person (if any) at whose request the subpoena was issued, and the court of issue or authority of issue: (i) of any steps the person took in an attempt to have the restriction or obligation varied, and that the restriction or obligation has not been varied; or (ii) that the law of the State does not permit such a variation; as the case requires. (3) Subsection (2) does not apply to action taken under this Act in relation to failure to comply with the subpoena. (4) The reference in subparagraph (2)(b)(i) to the supervisor of a person under restraint is a reference to: (a) if the person under restraint is on bail subject to a condition that he or she periodically reports to the police—any police officer at the police station at which he or she is required to report; or (b) if the person under restraint is on bail subject to a condition that he or she periodically reports to an officer of a correction service of a State—that officer; or (c) in any other case—the person who, under a law of a State or the order of a court, supervises compliance with the order or restriction to which the person under restraint is subject. (5) A reference in subsection (2) to varying a restriction or obligation so as to allow a person to comply with a subpoena includes a reference to giving a consent or permission so as to allow the person so to comply. 37 Issue of warrants for non‑compliance with subpoenas (1) If a person (other than a person under restraint) served with a subpoena under this Division fails to comply with the subpoena, a court or authority of the place of issue of the subpoena may issue such warrant as it might have issued had the subpoena been served in its place of issue. (2) If a person under restraint served with a subpoena under this Division fails to comply with the subpoena, a court or authority that could have issued a warrant under subsection (1) if the person were not a person under restraint may issue a warrant to have the person apprehended and brought before a court, authority or person to give evidence, or produce a document or thing, or both. (3) If a person under restraint served with a subpoena under this Division fails to comply with the subpoena and also fails to comply with section 36, a court or authority of the place of issue of the subpoena may, as an alternative to issuing a warrant under subsection (2), issue such warrant as it might have issued had the subpoena been served in its place of issue. Division 2—Service of subpoenas addressed to persons in prison 38 Application of Division This Division applies to a subpoena, issued by a court or an authority, that is addressed to a person (in this Division called the prisoner) who: (a) is in prison in a State other than the place of issue; and (b) is required to: (i) attend before a court, authority or person for the purpose of complying with the subpoena; or (ii) give oral evidence, by audio link or audiovisual link, to a court, authority or person. 39 Order for production (1) The court of issue or the authority of issue may 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 court or authority may make an order only if it is satisfied that: (a) the giving of the evidence that the prisoner is likely to give, or the production of a document or thing specified in the subpoena, is necessary in the interests of justice; and (b) there will be enough time: (i) for compliance with the order; and (ii) to permit the making of applications under sections 43 and 44. (3) Before making an order the court or authority may: (a) require the person (if any) at whose request the subpoena was issued to give such security as the court or authority specifies for ensuring compliance with an order under section 45; and (b) stay the proceeding for the making of the order until the security is given. (4) An order: (a) may be made subject to specified conditions; and (b) must be addressed to the custodian of the prisoner. 40 Service of order for production (1) Subject to any conditions specified under paragraph 39(4)(a), the order for production and the subpoena, or a copy of both the order and the subpoena, must be served on the custodian 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 for production and subpoena must be effected in the same way as service of a subpoena in the place of issue. (3) Service of the order for production and subpoena is effective only if the subpoena contains an address for service of the person (if any) at whose request the subpoena was issued. (4) The custodian, or, if more than one person is the custodian of the prisoner, any such custodian, must comply with the order for production even if that custodian: (a) is not the person named in the order as the custodian of the prisoner; or (b) is not the custodian who was served with the order for production and subpoena. (5) 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. (6) If: (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; then: (c) the prisoner: (i) is taken to have been served with the subpoena under section 29; and (ii) subject to paragraph 42(2)(b), is required to comply with the subpoena; and (d) sections 35, 36 and 37 apply in relation to the subpoena as if it had been issued under Division 1; and (e) section 36 so applies as if the subpoena had been served on the day of release. (7) The custodian need not comply with the order for production if the person to whom the subpoena is addressed is released from prison before the time for compliance. 41 Information to be provided Service of the subpoena is effective only if copies of such notices as are prescribed are attached to the subpoena, or copy of the subpoena, served. 42 Expenses (1) Service of the order for production is effective only if, 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 that would have been required under section 32 to have been paid or tendered to the prisoner if he or she were not in prison. (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 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 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. 43 Application for relief from subpoena (1) This section applies if the prisoner has a right under the law of the place of issue to apply to a court or authority to set aside or obtain other relief in respect of the subpoena. (2) Without limiting the ways in which, under the law of the place of issue, the application may be made, it may be made by transmitting the application to the court or authority by fax. (3) Within 24 hours after making the application, the prisoner must cause a copy of the application to be served on the person (if any) at whose request the subpoena was issued at the person's address for service. (4) For the purposes of calculating the 24 hour period, a day that is: (a) a Saturday; or (b) a Sunday; or (c) a public holiday or bank holiday in the place in which the application is to be served; does not count. (5) Without limiting the ways in which, under the law of the place of issue, service may be effected, it may be effected by transmitting the copy to that address by fax. (6) The court or authority may determine the application without a hearing unless the prisoner, or the person (if any) at whose request the subpoena was issued, objects. (7) For the purposes of determining the application, the court or authority may hold a hearing by audio link or audiovisual link. (8) A person who is entitled to practise as a barrister, solicitor or both before a court in: (a) the place of issue of the subpoena; or (b) another State in which a person is participating in the hearing by audio link or audiovisual link; has a right of audience before the court or authority at the hearing. (9) If the court or authority sets aside or grants other relief in respect of the subpoena, it is to make any necessary consequential order in respect of the order for production. 44 Application for relief from order for production (1) Subject to subsection (2), the court or authority that made the order for production may, on application by the custodian or the prisoner, set aside or vary the order. (2) The prisoner may only make an application on the ground that compliance with the order would have a substantial detrimental effect on his or her health or safety. (3) Without limiting the ways in which, under the law of the place of issue, the application may be made, it may be made by transmitting the application to the court or authority by fax. (4) Within 24 hours after making the application, the applicant must cause copies of the application to be served: (a) on the person (if any) at whose request the subpoena was issued at the person's address for service; and (b) if the applicant is the custodian—on the prisoner; and (c) if the applicant is the prisoner—on the custodian. (5) For the purposes of calculating the 24 hour period, a day that is: (a) a Saturday; or (b) a Sunday; or (c) a public holiday or bank holiday in the place in which the application is to be served; does not count. (6) Without limiting the ways in which, under the law of the place of issue, service on the person under paragraph (4)(a) may be effected, it may be effected by transmitting the copy to that address by fax. (7) Without limiting the matters that the court or authority may take into account in determining the application, the court or authority is to take into account: (a) public safety; and (b) the prisoner's health and safety. (8) The court or authority may determine the application without a hearing unless the custodian, the prisoner, or the person (if any) at whose request the subpoena was issued, objects. (9) For the purposes of determining the application, the court or authority may hold a hearing by audio link or audiovisual link. (10) A person who is entitled to practise as a barrister, solicitor or both before a court in: (a) the place of issue of the subpoena; or (b) another State in which a person is participating in the hearing by audio link or audiovisual link; has a right of audience before the court or authority at the hearing. (11) If the court or authority sets aside or varies the order for production, it is to make any necessary consequential order in respect of the subpoena. 45 Entitlement to expenses (1) A person who has incurred reasonable expenses as a result of compliance (by that person or another person) with the order for production is entitled to payment of an amount equal to those expenses. (2) The amount must be paid: (a) if the subpoena was issued at the request of a person—by that person; or (b) in any other case—by the State in which the subpoena was issued. (3) The court or authority that issued the order for production may make orders to ensure that the person who incurred those expenses receives the exact amount of those expenses. (4) If the subpoena was issued by a court, the orders may be made by an officer of the court if the rules governing the procedure of the court so provide. (5) Nothing in this section affects the operation of subsection 11AA(9) of the Christmas Island Act 1958 or subsection 15AC(9) of the Cocos (Keeling) Islands Act 1955. 46 Custody of prisoner etc. (1) The custodian of the prisoner, and any escort of the prisoner arranged by the custodian, have: (a) custody of the prisoner; and (b) while the prisoner is outside the State in which he or she was in prison—the same powers of detention and disposition of the prisoner as the custodian has in relation to the prisoner in that State; and (c) 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 way that the custodian or the escort requires. (3) The person so required must comply with such requirements as are reasonable. (4) 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 law in force in the State that relates to the liability of a person who escapes from lawful custody applies to the prisoner while the prisoner is outside the State for the purposes of compliance with the order for production. (5) Subsection (4) does not apply to lawful custody in respect of an offence against a law of the Commonwealth. (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 the 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. Part 4—Service of process of tribunals Division 1—Preliminary 47 Interpretation In this Part: proceeding means a proceeding in a tribunal in connection with the performance of an adjudicative function by the tribunal. 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; but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents. tribunal of issue, in relation to a process, means the tribunal by which the process was issued. Division 2—Service of initiating and other process related to adjudicative functions 48 Application of Division This Division applies with respect to a proceeding that concerns: (a) real property within the State in which the tribunal is established; or (b) a contract, wherever made, for the supply of goods or the provision of services of any kind (including financial services) within that State; or (c) an act or omission within that State; or (d) the carrying on of a p