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Thursday, 9 March 1972
Page: 622

Senator GREENWOOD (VictoriaAttorneyGeneral) - If Senator Cavanagh looks at the Evidence Act 1898 of the State of New South Wales, which prevailed in the Australian Capital Territory previously, he will find that in sub-section 2 of section 50 there was a comparable provision which read in these terms:

An order under this section may be made either with or without summoning the bank or any other party and shall be served on the bank 1 clear days before the same is to be obeyed, unless the court or judge otherwise directs.

I suspect that if Senator Cavanagh had examined that provision he would have found that it had certain curiosities and apparent inconsistencies; but that is a matter of interpretation. That would be simply an indication that a person may or may not serve the bank to appear on the hearing of an application made to the court. In those circumstances a party that wanted to make an application for an order would be left in a quandary as to whether it should serve the bank. A party which did not serve the bank might well find that the court required the bank to be served. That would involve the added expense of another court hearing, together with the actual cost of serving the bank. I can only say that a more straight forward and simple procedure is contained in clause 24 of this Bill, which lays down quite clearly that an application does not have to be served on the bank.

Senator Cavanagh - No, 'shall not'. If it said 'need not' it would be all right, but it says 'shall not'.

Senator GREENWOOD - Let us depart for a moment from the language of the statute and get to what it means in practice. In practice it means that an application does not have to be served upon the bank or the manager of that bank unless the court requires that it be served. The use of the word 'shall' is an indication in as mandatory and clear a way as one can use words that there is no obligation upon a person to serve the bank manager. But if, with all the affluence of wealth, Senator Cavanagh, as an applicant to the court for an order, felt that courtesy and justice required that the bank manager should be served before he made an application, then - notwithstanding what would appear to be a breach of the prohibition contained in clause 24 (2.) - I am sure the only end result of his actions would be that he would be out of pocket financially.

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