Ordinary course of post – now 7 days not 4

Section 160 of the Commonwealth Evidence Act 1995 has been 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 Act 2018 changes 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.

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.

UK

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 [2013] EWHC 2996 (Ch).

Reform?

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.

[This is an update of an earlier comment, in 2017].

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