Service and Execution of Process

In November 1982 the Commission was directed to review the process by which documents involved in legal proceedings are formally given to another person. Where people involved in legal proceedings are from different States or Territories, it can be difficult to perform tasks that are essential to the case, such as ensuring that all parties attend court. Similarly, it can also be difficult to enforce a court’s judgment outside the State or Territory in which it was made.

The Service and Execution of Process Act 1901 (Cth) was passed to address this problem. However the law had not been reviewed since 1901. In the meantime, it had become increasingly important to regulate the conduct of people across state and territory borders. Also, bodies such as tribunals had been created which were not anticipated when the original Act was drafted. Bearing in mind the social, legal, technological and economic changes that had occurred, it was appropriate for the system to be re-examined.

As part of the inquiry, the ALRC released an Issues Paper Service and Execution of Process (ALRC IP 5) in 1984. The final report (ALRC Report 40) was released in 1987.

Key recommendations

• The Service and Execution of Process Act 1901 (Cth) is no longer effective and is in need of broad reform.
• Commonwealth legislation should be passed to state the legal requirements for serving and enforcing documents across jurisdictional boundaries. It should also allow for tribunal proceedings to be effective where multiple jurisdictions are involved.
• The definition of the types of legal proceedings in the new legislation should be sufficiently broad to include criminal, civil and tribunal matters.
• The new legislation should allow for greater simplicity by reducing the number of steps required. In many cases, this would mean removing the need to seek the court’s approval before each step.

Implementation

In 1991 the Service and Execution of Process Act 1901 (Cth) was amended to bring proceedings before tribunals within the Act’s power.

On 10 April 1993 the Service and Execution of Process Act 1992 (Cth) commenced, repealing the earlier Act. This Act implements a large number of the Commission’s recommendations relating to the procedures to be applied and the effect of legal steps between States. It replaces the various State systems with a single national system, which covers all inter-State service rules. The Act applies to tribunals as well as courts.