In October 2018, the Civil Law and Justice Legislation Amendment Act 2018 (Cth) received Royal Assent, officially becoming law. This innocuous-sounding piece of legislation has potentially significant effects for those engaging in legal disputes due to the amendments it makes to the Evidence Act 1995 (Cth); in particular the amendments changing the rules of evidence around posted articles, and when they are deemed to be received.

Under the previous form of the Evidence Act there was a presumption that, if an article was sent by pre-paid post to a person at a specified address within Australia, they received it on the fourth working day after the item was posted.

The purpose of this rule is to give comfort to those serving documents by post from spurious claims by addressees denying they ever received the document.

A party who claimed not to have received the posted article would have to provide evidence to the court. This evidence would have to be sufficient to raise doubts about the presumption that they had received it on the fourth working day after it was posted. A mere denial that the item was delivered would not be enough.[1]

Whilst the rule is important in protecting both those serving and receiving important legal documents, the increasingly-diminished delivery schedule of the Australia Post meant that, in some instances, the four-day rule was not sufficient.

The new amendments to the Evidence Act mean that articles are now presumed to be received after seven (7) working days, not four (4). The government’s Explanatory Memorandum for the changes noted that this extension of the time was made take into account the changes to Australia Post’s delivery times.[2]

The effect of this change will be twofold: firstly, it will mean that those sending certain documents (such as claims, statutory demands and possibly notices under contracts) will have to adjust their calculations as to when they can consider documents to have been served, and when they should expect a reply. It could be as many as 11 calendar days between the day an item is posted and the day the sender can presume it to have been received.

Secondly, it will mean that those receiving important and time-sensitive documents will not need to panic that the Australia Post’s diminished delivery schedule could mean they inadvertently miss an important deadline.

The relevant sections of the new Act came into effect on 26 October 2018, and applies to any postal articles sent after that date within Australia. It would be wise for firms to adjust their precedents and guidelines to account for the changes.

 

Mark Harley
Principal

mharley@bosslawyers.com.au

Callum Woods
Law Clerk

Boss Lawyers

T:   1300 267 711
W: www.bosslawyers.com.au

December 2018
 

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[1] Deputy Commissioner of Taxation v Josway Hospitality Pty Ltd [2018] FCA 466 [2].

[2] Explanatory Memorandum, Civil Law and Justice Legislation Amendment Bill 2018 (Cth) [8].