Australian Capital Territory
Arrest on Mesne Process Act 1902     No 24
Republication No 2
Republication date: 15 August 2002
Last amendment made by Act 2001 No 56
Amendments incorporated to 5 September 2001

Unauthorised version prepared by ACT Parliamentary Counsel's Office
About this republication
The republished law
This is a republication of the Arrest on Mesne Process Act 1902 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 15 August 2002.  It also includes any amendment, repeal or expiry affecting the republished law to 5 September 2001.  
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. 
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au):
•	authorised republications to which the Legislation Act 2001 applies
•	unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication.  Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117).  The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.  
When preparing the authorised version of this republication amendments were made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol  U  appears immediately before the provision heading.  The text of the uncommenced provision or amendment appears only in the last endnote.
Modifications
If a provision of the republished law is affected by a current modification, the symbol  M  appears immediately before the provision heading.  The text of the modifying provision appears in the endnotes.  For the legal status of modifications, see Legislation Act 2001, section 95.
Penalties
The value of a penalty unit for an offence against this republished law at the republication date is—
	(a)	if the person charged is an individual—$100; or
	(b)	if the person charged is a corporation—$500.

Amendments incorporated to
5 September 2001

Australian Capital Territory
Arrest on Mesne Process Act 1902

Contents
	Page
Part 1	Preliminary
	1	Name of Act	2
	3	Definitions for Act	2
Part 2	Arrest and bail
	4	No arrest on mesne process except under this Act	3
	5	Order to hold to bail	3
	6	Issue of writ of capias	4
	7	Execution of writ	4
	8	Order and arrest to be during pendency of action	4
	9	Defendant to remain in custody until bail bond given or deposit made	4
	10	Subsequent proceedings subject to rules of court	4
Part 3	Discharge
	11	Application for order nisi for discharge	5
	12	Proceedings on order nisi	5
	13	Appeal	5
	14	Discharge on bankruptcy	5
Endnotes
	1	About the endnotes	6
	2	Abbreviation key	6
	3	Legislation history	7
	4	Amendment history	8
	5	Earlier republications	8

Amendments incorporated to
5 September 2001

Australian Capital Territory
Arrest on Mesne Process Act 1902

An Act to consolidate the enactments relating to arrest on mesne process

    

Part 1	Preliminary
    
1	Name of Act
This Act is the Arrest on Mesne Process Act 1902.
3	Definitions for Act
In this Act:
Note	A definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155).
capias means capias ad respondendum.
court means the Supreme Court.
judge means a judge of the Court.

Part 2	Arrest and bail
    
4	No arrest on mesne process except under this Act
No person shall be arrested on mesne process in any civil action in any court except in the cases and in the way provided in this Act.
5	Order to hold to bail
In any action in the Supreme Court, if a judge is satisfied by affidavit disclosing the facts constituting the ground of the plaintiff’s claim, or by evidence on oath before the judge, that the plaintiff has prima facie a good cause of action in relation to his or her claim against the defendant and is also satisfied by the affidavit of the plaintiff or some other person—
	(a)	that the cause of action is to the amount of $40 or upwards, or that the plaintiff has sustained damage to that amount; and
	(b)	that any defendant is about to remove or is making preparations to remove out of the jurisdiction of the court; and
	(c)	that the action will be defeated unless the defendant is forthwith apprehended; and
	(d)	that the application is made within a reasonable time after the fact of the defendant’s intention so to remove came to the knowledge of the plaintiff or might have become known to him or her by reasonable diligence on his part;
the judge may by a special order direct that the defendant shall be held to bail for the sum that the judge considers appropriate, not exceeding the amount of the debt or damages.
6	Issue of writ of capias
	(1)	Thereupon the plaintiff, within the time expressed in the order but not afterwards, may sue out 1 or more writ or writs of capias against the defendant.
	(2) 	Every writ shall be in the form prescribed by the rules of court.
7	Execution of writ
	(1)	The sheriff of the Territory or other officer to whom any such writ is directed shall, before the return of the writ but not afterwards, proceed to arrest the defendant on it.
	(2) 	A writ may be lawfully executed on a Sunday.
8	Order and arrest to be during pendency of action
The order may be made and the defendant arrested under it at any time after the beginning of the action and before final judgment is obtained in it.
9	Defendant to remain in custody until bail bond given or deposit made
The defendant when arrested shall remain in custody until he or she has given a bail bond to the sheriff or other officer, or has made deposit of the sum endorsed on the writ of capias, together with $20 costs.
10	Subsequent proceedings subject to rules of court
All subsequent proceedings about putting in and perfecting special bail shall be subject to, and in accordance with, the practice and procedure of the court.

Part 3	Discharge
    
11	Application for order nisi for discharge
Any person arrested on a writ of capias may apply to a judge at any time after the arrest for an order on the plaintiff to show cause why the person should not be discharged out of custody.
12	Proceedings on order nisi
Any judge may make absolute or discharge the order, and may direct the costs of the application to be paid by either party, and may make any other order that he or she considers appropriate.
13	Appeal
On the application of either party dissatisfied with any such order, the Supreme Court may discharge or vary it.
14	Discharge on bankruptcy
	(1)	Any person in the custody of any sheriff, gaoler, or officer under any such writ shall on the sequestration of his or her estate under the law in force for the time being relating to bankruptcy, be entitled to his or her discharge from the custody on the order of a judge of a court exercising jurisdiction in bankruptcy, and shall be forthwith discharged from the custody either absolutely or on any conditions that the judge may impose.
	(2) 	No such sheriff, gaoler, or officer shall incur any liability in relation to the discharge to any person for anything done by him or her under this section.

Endnotes
1	About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history.  Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history.  Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws and expiries are listed in the legislation history and the amendment history.  These details are underlined.  Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.  
The endnotes also include a table of earlier republications.
If the republished law includes penalties, current information about penalty unit values appears on the republication inside front cover.
2	Abbreviation key

am = amended	ord = ordinance	
amdt = amendment	orig = original	
ch = chapter	p = page	
cl = clause	par = paragraph	
def = definition	pres = present	
dict = dictionary	prev = previous	
disallowed = disallowed by the Legislative 	(prev...) = previously	
Assembly	prov = provision	
div = division	pt = part	
exp = expires/expired	r = rule/subrule	
Gaz = Gazette	reg = regulation/subregulation	
hdg = heading	renum = renumbered	
IA = Interpretation Act 1967	reloc = relocated	
ins = inserted/added	R[X] = Republication No	
LA = Legislation Act 2001	s = section/subsection	
LR = legislation register	sch = schedule	
LRA = Legislation (Republication) Act 1996	sdiv = subdivision	
mod = modified / modification	sub = substituted	
No = number	SL  = Subordinate Law	
num = numbered	underlining = whole or part not commenced	
o = order	or to be expired	
om = omitted/repealed		
3	Legislation history
This Act was originally a NSW Act—the Arrest on Mesne Process Act 1902 No 24 (NSW).
The Act was in force in NSW immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by the Seat of Government Acceptance Act 1909 (Cwlth), s 6.
Under the Seat of Government (Administration) Act 1910 (Cwlth), s 4 the Act had effect in the ACT as if it were an ACT law (subject to ordinances made under the Seat of Government (Administration) Act 1910).
The ACT Self-Government (Consequential Provisions) Act 1988 No 109 (Cwlth), s 12) converted some NSW Acts in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 1 July 1990.
Under the Interpretation Act 1967, s 65 (now expired) all former NSW Acts in force in the ACT immediately before 10 November 1999 (including this Act) became, for all purposes, laws made by the ACT Legislative Assembly. This completed the process of making former NSW Acts fully into ACT laws.
Before 11 May 1989, ordinances commenced on their notification day unless otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).
	NSW legislation
Arrest on Mesne Process Act 1902 No 24
notified 31 July 1902
commenced 31 July 1902
as amended by
	Commonwealth legislation
New South Wales Acts Application Ordinance 1984 No 41
notified 10 August 1984
commenced 10 August 1984
	Legislation after becoming Territory enactment
Statute Law Amendment Act 2001 (No 2) 2001 No 56 pt 3.5
notified 5 September 2001 (Gaz 2001 No S65)
commenced 5 September 2001 (s 2 (1))
4	Amendment history
The New South Wales Acts Application Act 1984 (previously the New South Wales Acts Application Ordinance 1984), sch 2, pt 4 sets out the text of this Act in an amended form and provided for the amended form to apply as the text of the Act in force in the ACT.  (In its amended form, s 2, pt 4 (ss 15 to 35) and the schedule were omitted).  This endnote, therefore, only details amendments made after that date.
Name of Act
s 1	sub 2001 No 56 amdt 3.5
5	Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.  
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register.  A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1.  Except for the footer, electronic and printed versions of an authorised republication are identical. 

Republication No	Amendments to	Republication date	
1	Ord 1984 No 41	31 August 1992	

Unauthorised version prepared by ACT Parliamentary Counsel's Office

©  Australian Capital Territory 2002