INTRODUCTION
6.1 In Chapter 5 we suggested that Sunday is now a day of rest and recreation for predominantly secular, rather than religious reasons. We also suggested that to permit the service of legal documents is not necessarily inconsistent with the concept of Sunday as a day of rest and recreation. We now consider a further question namely, whether there are positive reasons for permitting service of civil process in New South Wales on Sunday.
CONSIDERATIONS IN FAVOUR OF REFORM
Relaxation of Sunday Observance Legislation
6.2 There are two major considerations which support the view that service of civil process should be permitted on Sunday. The first is the general relaxation of the laws governing commercial and other activity on Sunday. We have drawn attention to the general repeal of pre- existing Sunday observance legislation by the Imperial Acts Application Act 1969.1 Other reform legislation which we have already described includes the Factories, Shops and Industries Act 19622 and the Sunday Entertainment Act 1966.3 One result of this legislation is that New South Wales no longer has laws designed to compel religious observances on Sunday. Another is that sports and entertainments may now be played and presented on Sunday, albeit under legal controls. Further, although there are legal restrictions on some trading activities, there is at the same time wide freedom for industry and small traders to carry on business and professional activities if they wish.4
Process Already Served on Sunday
6.3 While the legislative trend has been marked, this of itself might not be sufficient to justify a change in the law governing the service of civil process on Sunday it could be argued that although service of such process would not necessarily be inconsistent with Sunday as a day of rest and recreation no pressing reason exists for making further inroads into the restrictions that continue to apply to Sundays. However, there is an important second consideration. This is the fact that, under existing State and Commonwealth law, a large amount of legal process may lawfully be served on Sunday in New South Wales.
6.4 We have described in Chapter 3 the kinds of legal process that may already be served on Sunday in New South Wales. We summarise them as follows:
- all criminal process issued out of New South Wales courts;
- process “for the apprehension of any persons” issued out of New South Wales courts, which (as we have explained) appears to include some process properly described as civil;
- all process issued out of both the Federal Court of Australia (including bankruptcy notices and bankruptcy process) and the Family Court of Australia.
6.5 Our inquiries indicate that not only can criminal process be served on Sunday, but it is in fact served on that day. The New South Wales Police Department has advised us that first instance warrants, search warrants and warrants for commitment and apprehension are served on Sunday, as are summonses and subpoenas. The Department points out that service tends to occur less frequently on Sunday than on other days of the week not because of any policy of Sunday observance, but because duty rostering of officers makes it more efficient for process to be served on weekdays (including Saturdays). Nonetheless, service on Sunday is not uncommon. The Police Department also has advised that it often seeks to interview and take statements from members of the public on Sunday.
6.6 Service of civil process issued out of Federal courts also occurs on Sunday. in the Family Court for example, a high proportion of proceedings for dissolution of marriage are conducted by the parties in person. We understand that in such cases process is frequently served at the weekend, including Sunday, since this is the most practical time to locate the other party. In addition there is no legal barrier to parties who are legally represented arranging service of process on Sunday. Our discussions with judges and officers of the Federal Court and the Family Court have disclosed that they are not aware of any difficulties or complaints arising from service on Sunday or the rules which permit such service.
6.7 The fact that a large amount of process can be and is lawfully served on Sunday in New South Wales is a powerful consideration in favour of permitting all civil process to be served on that day. We think it is desirable that there should be uniformity in New South Wales between State and Commonwealth law. We think it can hardly be suggested that the character of Sunday as a day of rest and recreation will be preserved by the retention of the prohibition under State law on service of (most) civil process on Sunday yet will not be impaired by the service of civil process under Commonwealth law. We do not know of any move to prohibit service of civil process on Sunday under Commonwealth law. Therefore, it would seem that unless State law permits civil process to be served on Sunday, the absence of uniformity will continue.
Urgent Matters and Convenience for Litigants
6.8 A third factor to take into account is that there are some occasions on which Sunday is the most convenient time for service of process, and other occasions when it is the only time in which service could have an effect. The element of convenience is illustrated by those cases where a defendant actively avoids service, or where work keeps a defendant away from home during week days. Cases of the second kind could involve, for example, the need for immediate service of notice of the granting of injunctions to prevent the destruction of property or documents, of applications for so-called Mareva injunctions to prevent a person from removing assets from the State, and of orders concerning children who may otherwise be taken out of the jurisdiction. Again it is not uncommon for urgent applications to be made to a judge on a Friday afternoon for orders which envisage the hearing of an injunction application on the following Monday and the service of short notice of the proceedings during the weekend. The urgency of some cases is such that we would be surprised if there have not been occasions on which judicial orders have been made on Sunday requiring notice by telephone or telegram of the granting of an injunction to be given on the same day by a plaintiff to a defendant. The case of In re “N” (INFANTS) discussed earlier5 was one of extreme urgency where the father had removed his children from a school on a Saturday. As it happened, the question before the court was not the validity of service on Sunday, but the validity of the court’s order because it was made on a Sunday. It is significant that since that time the English Supreme Court Rules have been amended so as to permit service of process on Sunday when urgency requires it.6 These examples show that there can arise the need for swift action by litigants and by the courts due to modern business practices and technology which enable money to be transferred and transactions to be completed electronically, and persons and property to be moved with great speed. If notification of service of court process remains prohibited on Sunday, it is possible that justice could be defeated in some cases.
CONCLUSION
6.9 We have come to the conclusion that these considerations provide sufficient reason for recommending reform of the law of New South Wales relating to the service of civil process on Sunday. We are, of course, aware that in other Australian States and overseas countries service of civil process is still prohibited on Sunday, although there are exceptions to the prohibition in some jurisdictions. However, in none of the reports we have cited - English, North American and Australian - is there one clear statement of principle that specifically supports the prohibition on service of civil process. More importantly, none has been concerned with the particular situation which prevails in New South Wales, under which service of much civil process is permitted by Commonwealth law but (subject to limited exceptions) is not permitted by State law.
RECOMMENDATIONS
6.10 We recommend that the law of New South Wales be amended so as to make lawful the service of civil process on Sunday. Without limiting the scope of the recommendation it should extend to the service of initiating process issued out of all civil courts, and of subpoenas. if this recommendation is adopted the result will be that all legal process under New South Wales law may be lawfully served on Sunday in New South Wales.
6.11 Our recommendation could be implemented by the repeal of section 41 of the Imperial Acts Application Act 1969, which is the sole statement of law that at present renders void the service on Sunday of civil process issued out of the Supreme Court and Local Courts. As for the District Court it would also be necessary, in order to implement our recommendation to repeal rule 4 of Part 8 of the District Court Rules which makes direct reference to service of process on Sunday.
6.12 We are, however, of the opinion that it is desirable, if our recommendations are accepted, for the statutory provision to go further than the simple repeal of section 41. The provision should we think, spell out the lawfulness of those acts which section 41 hashitherto made void.
NO RECOMMENDATION FOR RESTRICTED HOURS
6.13 We have considered the question of legal limit upon the hours of the day during which service of process may be effected. Apart from a statutory prohibition of execution of Local Court judgments between 8 pm and 7 am there is no present restriction under New South Wales law of the hours of service or execution of process. Our view is that a general statutory restriction of this kind should be considered only if there is cause to suggest the existence of unreasonable behaviour at unreasonable hours on the part of persons serving process. We are aware of no such behaviour, and do not consider that specific controls should be imposed simply by way of precaution. Accordingly, we make no recommendation for a limitation of this kind.
DRAFT LEGISLATION
6.14 Submitted with this report in the Appendix is draft legislation which reflects our recommendation. The draft legislation if accepted and enacted, would have effect in all courts. I t would override the provisions of the District Court Rules referred to above. Those rules would no doubt be formally modified by the judges of the District Court pursuant to section 161 of the District Court Act 1973, in due course.
FOOTNOTES
1. See paras. 3.1-3.3.
2. See paras. 3.14. 3.20.
3. See paras. 3.1, 3.12.
4. See Chapter 3.
5. See para. 2.25.
6. See para. 4.19.
