Section 61W - Service of notice to produce or notice to attend

Section 61W outlines how the Office of the Victorian Information Commissioner (OVIC) is to ‘serve’ a notice to produce or attend on a person. A notice to produce or attend must be ‘served’ on the person to whom it relates.

‘Service’ refers to the formal delivery of a document to another person to be satisfied that the other person has received it and has been made aware of it.

OVIC must serve a copy of a notice to produce or attend at least seven clear days before the date on which the person is required to attend an examination or produce documents.⁴ A notice must also be served at a reasonable time.

However, OVIC may serve a notice to produce or attend which requires immediate attendance if it considers on reasonable grounds that a delay in the person’s attendance is likely to result in:

• a document or thing being lost or destroyed;
• an offence being committed;
• the person who was served with the notice escaping; or
• serious prejudice to the conduct of the inquiry to which the notice relates.⁵

OVIC may also require immediate attendance if the person on whom the notice is served consents to it.⁶

A notice to produce or attend served on a natural person must be served on the person to whom the notice relates, or their authorised legal representative, in one of the following ways:

• electronic service:
  • by delivering a copy of the notice electronically (such as by email) to the person¹⁶ or to their legal representative¹⁷ that is confirmed as having been received by any form of electronic communication;¹⁸
• personal service:
  • by delivering a copy of the notice to the person personally;¹⁹
  • by delivering a copy of the notice to the person’s legal representative personally (the notice must be addressed to the representative),²⁰

personal service means handing the person the notice or placing a copy of the notice on a surface in their presence, after establishing their identity,²¹

• postal service:
  • by sending by registered post a copy of the notice to the person’s last known home or work address;²²
  • by sending by registered post a copy of the notice which is addressed to the person’s legal representative and sent to the representative’s work address;²³ or
• other service:
  • by leaving a copy of the notice at the person’s legal representative’s work address and leaving it with someone who works there and who is 18 years of age or older.²⁴

A notice to produce or attend served on a body corporate can be served by:

• leaving a copy of the notice at the registered office²⁹ or principal place of business of the body corporate, with someone who works there and who is 18 years of age or older;³⁰
• sending by registered post a copy of the notice addressed to the body corporate at its registered office or place of business;³¹ or
• delivering a copy of the notice electronically (for example, by email) that is confirmed as having been received.³²

A notice to produce or attend may also be served in accordance with sections 109X and 601CX of the Corporations Act 2001 (Cth).

If a notice is served on a person or their legal representative by registered post, the person will be ‘deemed’ to have received the notice at the time at which the letter would ordinarily be delivered by registered post, provided OVIC has properly addressed, prepaid, and posted the notice to the person or their representative.³⁴

Generally, an ‘electronic communication’³⁶ is any transmission of information by electronic means and includes means such as email and facsimile.