The Secretary, Department of Home and Territories, has submitted the following letter from Messrs McCay & Thwaites, Solicitors, for advice:

Pursuant to the interview between yourself and Mr Thwaites on Tuesday last week we send herewith cutting from an Adelaide paper containing a report of the decision of Mr Commissioner Mitchell in the Local Court of South Australia by which he decided that there was no power to enforce service of summonses and execution in the Northern Territory or any of the Territories of the Commonwealth under the Act abovenamed.

If this decision is correct it is obvious that a further Ordinance is required to make the Act applicable to the Northern Territory. We would be obliged if you would have the necessary investigation made and, if it be necessary to do so, have an Ordinance passed accordingly. Please advise us in due course.

The case as reported in the newspaper came before Mr Commissioner Mitchell in the Local Court of South Australia on an interlocutory summons to set aside the service of a process served upon the defendant in the Northern Territory. Mr Commissioner Mitchell, in setting aside the service is reported to have referred to the Northern Territory Acceptance Act which declared that the Northern Territory was accepted as a 'Territory' under the authority of the Commonwealth and as the Commonwealth had not made regulations in particular for applying the provisions of the Act to the Northern Territory, the service would have to be set aside.

Sub-section (1) of section 4 of the Service and Execution of Process Act is as follows:

A writ of summons issued out of or requiring the defendant to appear at any Court of Record of a State or part of the Commonwealth may be served on the defendant in any other State or part of the Commonwealth. Section 8 of the same Act is as follows:

The time to be limited by the writ of summons for appearance being entered or made by the defendant shall be such as may be prescribed by the Rules of the Court out of which it is issued, but shall not be less than the following, that is to say:-

(a) If the writ is issued in the State of Western Australia (outside the cities of Perth and Fremantle) or in the Northern Territory, or is to be served in the State of Western Australia or in the Northern Territory-forty-five days.

Steps have been taken to apply the provisions of the Service and Execution of Process Act to the Territories of Papua and Norfolk Island but as the Northern Territory is a part of the Commonwealth and is specially mentioned in section 8 of that Act, no action is necessary in that regard.

I am accordingly of opinion that the Service and Execution of Process Act applies to the Northern Territory.

[Vol. 17,p.91]