Section 160 of the Commonwealth Evidence Act 1995 is proposed to be amended to change the day when posted letters are presumed to be delivered “in the ordinary course of post”. The Civil Law and Justice Legislation Amendment Bill 2017 would change the presumed timing of delivery from the fourth to the seventh business day after posting.
That is significant when the law provides that action needs to be taken within a certain number of days after a document is served: see for example section 459G of the Corporations Act.
This is a belated change that purports to accommodate the priority and regular domestic mail arrangements introduced by Australia Post at the beginning of 2016. These offer 1-4 business days delivery for priority mail, and 2-6 business days for regular mail, depending on location.
It is section 29(1) of the Acts Interpretation Act 1903 (Cth) that refers to delivery in the ordinary course of post. It provides that where an Act authorizes or requires any document to be served by post, whether the expressions “serve”, “give” or “send” or any other expression is used, then the service is deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.
Two immediate points about this are:
- This applies “unless evidence sufficient to raise doubt about the presumption is adduced”. The presumption of four days can therefore be displaced. A winding up demand posted from the Melbourne CBD to the debtor company on 12 December 2016 was received at its registered office in East Malvern over a month later, on 13 January 2017. As the Court said, “despite the somewhat extraordinary period it is said that the document took to arrive”, the debtor’s evidence displaced the presumptions afforded by s 29(1) of the Acts Interpretation Act … and s 160 of the Evidence Act”: Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd  VSC 275.
- The Commonwealth Evidence Act applies to federal proceedings, not state or territory: Lane Cove v Geebung (No 2)  NSWSC 118. One would have to see whether the states and territories are likewise amending their evidence legislation. Harmonised evidence laws in Australia are yet to be fully achieved.
So, a letter posted on Monday 3 July is presumed not to have been delivered until Thursday 10 July, under this change, whether sent by priority or regular mail.
The change proposed by the Bill may not be adequate given that it does not recognise the two time periods of delivery of mail. And even now, s 160 of the Evidence Act presumption is out of kilter with the Australia Post delivery times. The lawyers can look at that one.
In contrast, England has adopted a more useful change in response to its comparable first and second class mail arrangements.
Rule 1.42 of the Insolvency (England and Wales) Rules 2016 provides that a document sent by first class post is treated as delivered on the second business day after the date of postage, with a document sent by second class post treated as delivered on the fourth business day. The date of the post-mark, if shown, is presumed to be the date on which the document was posted. That does not necessarily remove the possibility of dispute: Bank of Ireland v Gill  EWHC 2996 (Ch).
Some laws allow the date of posting to be the date of service, simply as a practical means of avoiding the vagaries of delivery time: for example, section 222AOF of the Income Tax Assessment Act 1936 “provides a self-contained means of satisfying the precondition to recovery specified in s 222AOE, and is not subject to the operation of s 29 of the Acts Interpretation Act.”
In relation to the tight service times under Part 5.3A of the Corporations Act, existing law is that a notice to creditors under s 439A is served on the day of posting.
That is, the timing of “giving” in “giving written notice of the meeting” in s 439A(3)(a) is “the time it is put in the post. As the Court in Re Vouris  NSWSC 702 said, “the omission of common provisions deeming service to have been effected X days after posting is no oversight. … Any construction that required the time of convening of a meeting to depend upon when some individual creditor received notice or the last of the creditors had received notice, would make it very difficult to administer”: see also Re Yates  FCA 370.
This would appear to continue under the new provision – s 75-225 Corporations Schedule – commencing 1 September 2017, given the similarities in wording. Section 75‑225 provides that the administrator must convene a meeting under s 439A by written notice given to as many of the company’s creditors as reasonably practicable. The notice must be given at least 5 business days before the meeting. Notice of the meeting must be lodged with ASIC—s 75‑40.
No legislative “oversight” need be assumed in relation to new s 75-225.
Debates about the time of service, which postal service can often create – a snail ate my mail – are an unnecessary distraction from the substance of what is in dispute.
The government could assist with an app that provides the final date for filing or lodgment, or whatever the law requires, according to the particular provision applicable. The courts themselves could do the same for their own deadlines.
The Supreme Court of Canada offers a useful link that sets out a series of examples of when different time limits apply, for example in relation to applications for leave to appeal.
Means of service that provide better evidence clearer should also be adopted, if available. New s 600G provides some assistance. But the use of mail as a means of serving or delivering a documents is on the wane in any event, with website notifications gathering momentum.
If mail is used, practitioners and lawyers would be wise to use priority mail as a matter of practice.