CONSIDERATION
23 In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 ("Fancourt"), there was a question whether an owner of goods "served" notice on the hirers of them as required by s 13 of the Hire Purchase Act 1959 (Qld). The High Court had to consider s 42(1)(c) of that Act, which was a provision similar to s 109X of the Corporations Act, and s 39(1) of the Acts Interpretation Acts 1956 to 1962 (Qld) as it then was, whichwas similar to s 29(1) of the Acts Interpretation Act. The Court held (at 96-97) that the second limb of the Acts Interpretation Act provision is not enlivened where there is proof of non-delivery. The consequence, their Honours said, is that notwithstanding that service by post is permitted and the requirements for service by post are complied with, where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service. In other words, by reason of the expression "unless the contrary is proved", the company can, by proving that "delivery" did not occur, overcome the effect of the deemed service provision entirely. Their Honours observed (at 97): "It may be thought that there is an anomaly in such a result".
24 Their Honours considered, however, that "delivery may be different from receipt by the intended recipient", and that, provided delivery is not disproved (such as by return of the postal article to the sender undelivered), the mere fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post (at 97). In Fancourt itself, their Honours noted, there was no evidence of non-delivery, and it followed that service was deemed to have taken place at the time when the relevant letter or packet would have been delivered in the due course of the post.
25 The defendant submits that non-delivery is proved in the present case, apparently because: there is no receptacle for postal articles at Unit 3; there is an arrangement between the defendant and the Post Office for the diversion of mail addressed to Unit 3 to Box 590; if delivery to Box 590 had taken place, the only person who collected the mail from that box, Ms Mannile, would have collected the envelope containing the statutory demand and taken it to Unit 3; and she would there have handed the statutory demand to Mr Vane who, at the same time, would have "received" it.
26 Section 109X of the Corporations Act, and the first limb of s 29(1) of the Acts Interpretation Act are to the effect that by duly posting a statutory demand to a company's registered office, the sender, without more, "serves" it on the company. The first limb of s 29(1) has that effect because a "contrary intention" does not appear in s 109X or elsewhere and because that limb does not affect the operation of s 160(1) of the Evidence Act as it does not touch on the presumption as to time of receipt, which is the sole subject matter of s 160(1).
27 Commonly, as in the present case, the sender has no knowledge of the physical circumstances at the registered office or of any special arrangement between the company and the Post Office for the diversion of the company's mail to a Post Office box. There are strong policy reasons why any risk arising from the fact that there is no letter box or other facility for receipt of mail at the registered office or from such an arrangement should lie with the company. It is the company that chooses not to have such a facility, or to have as its registered office premises to which it is not practicable for mail to be delivered, or simply to make an arrangement with the Post Office for mail addressed to the company's registered office not to be delivered to that office but to be deposited in its Post Office box instead.
28 Section 109X of the Act and the first limb of s 29(1) of the Acts Interpretation Act reflect these policy considerations.
29 The fact remains, however, that s 160(1) of the Evidence Act (likewise the second limb of s 29(1) of the Acts Interpretation Act) allows for the possibility of the company displacing the presumption as to time of receipt (and s 29(1)'s deemed time of service provision). The plaintiff did not adduce evidence directed to proving the time of service, but relied on the statutory presumption. I suggest that in this respect the plaintiff is in the same position as that of nearly all persons who wish to serve documents on a company by posting them to its registered office.
30 The defendant did not raise any point as to whether the time of service in this case is that provided for in s 160(1) of the Evidence Act or in the second limb of s 29(1) of the Acts Interpretation Act. In fact, subs (2) of s 29 of the Acts Interpretation Act has the effect that it is the "fourth working day" period specified in s 160(1) of the Evidence Act that applies, because, by reason of subs (2), s 29 is not permitted to affect the operation of s 160 of the Evidence Act. In any event, the defendant's submission is simply that the plaintiff is not in a position to rely on either statutory provision as to time because, on the evidence, the statutory demand was not delivered to Unit 3 at all.
31 In my view, the defendant has not adduced "evidence sufficient to raise doubt about the presumption" in terms of s 160(1) of the Evidence Act (or, a fortiori, "proved" the contrary of the deemed time of service provision of the Acts Interpretation Act).
32 I do not know why Mr Vane did not receive the statutory demand. There are three possibilities as to where it went astray: between posting by Ms Taylor and arrival at Box 590; between collection from Box 590 and arrival at Unit 3; or within Unit 3. The defendant's evidence does not persuade me that the first or second possibility is more probable than the third, or that the evidence is sufficient to raise doubt about whether the third explanation is the right one.
33 I need not discuss what the legal position would have been if the second possibility had been proved to have occurred, for example, if it had been proved that Ms Mannile had collected the envelope containing the statutory demand from Box 590 and lost it before she reached Unit 3.
34 It is certainly possible, if not probable, that Ms Mannile collected the envelope containing the statutory demand when she cleared Box 590 on Wednesday 29 or Thursday 30 November 2006, or on the Tuesday, Wednesday or Thursday of the following week, and took it to Unit 3 in accordance with the business practice established by the evidence, but that subsequently something went awry within Unit 3 resulting in Mr Vane's not receiving the statutory demand. The envelope containing the statutory demand may have been mislaid by Ms Mannile within the office and inadvertently discarded as rubbish. It is not as if the defendant put into evidence daily incoming mail records demonstrating that the statutory demand did not reach Unit 3. Nor is there evidence that the envelope containing the statutory demand was returned by the Post Office to the plaintiff (it was not suggested that the plaintiff must fail for not having led express evidence of non-return of the envelope). Mr Vane and Ms Mannile can go no further than to depose to a business practice, and, in the case of Mr Vane, to the fact that he personally did not receive the statutory demand.
35 In my opinion, it does not displace or raise doubt about the presumption as to the time of receipt found in s 160(1) of the Evidence Act to prove that an employee of the company, rather than Australia Post, was the means by which a postal article was transported from the Post Office to the company's registered office. A similar observation would apply, mutatis mutandis, to the deemed time of service provision found in the second limb of s 29(1) of the Acts Interpretation Act.
36 Counsel for the parties referred me to several authorities on the statutory provisions to which I have referred, in factual contexts in which mail addressed to a company's registered office was deposited in its Post Office box rather than delivered by post to the registered office. These "diversion arrangement" cases were recently comprehensively reviewed by White J in the Supreme Court of New South Wales in Scope Data Systems Pty Ltd v David Goman as Representative of the partnership BDO Nelson Parkhill [2007] NSWSC 278.
37 In view of my conclusion that the evidence is not sufficient, in the light of the evidence of Ms Mannile's practice of collecting the mail from Box 590 and taking it to Unit 3, to raise doubt about the presumption under s 160(1) of the Evidence Act that the statutory demand was received at Unit 3 on Monday 4 December 2006, I need not discuss the question whether, and if so in what circumstances, an arrangement for the diversion by the Post Office of mail addressed to a company's registered office to a Post Office box can be relied on by a company to overcome the statutory presumption as to time of receipt contained in s 160(1) of the Evidence Act and the deemed time of service provision contained in the second limb of s 29(1) of the Acts Interpretation Act.
38 Before I conclude, I make the following observations concerning the state of evidence in this case. As noted earlier, no witness on either side was cross examined. The defendant did not dispute that the statutory demand was posted to Unit 3 as Ms Taylor deposed, but I would have expected the plaintiff to adduce more precise evidence than was led here of posting. I am left to infer on the basis of Ms Taylor's unchallenged affidavit evidence that she remembered on 15 January 2007 (when she made her affidavit) having attended a Post Office on November 28 2006 and posted the statutory demand there in an envelope addressed to Unit 3. Were there no business records of this posting? None were put in evidence.
39 Where, as here, delivery is put in issue, a plaintiff should adduce detailed evidence of the facts relied upon to prove posting. The evidence should include express evidence that the document was not returned to the sender undelivered.
40 The defendant's evidence was also slender but this may be excusable. In a small business, a record of incoming mail may be maintained. If not, the company simply suffers the disadvantage when a case such as the present one arises of not being able to prove a negative. Nonetheless, the present defendant's evidence might also, with benefit, have been more detailed. At least, the evidence should have addressed the question of the recording of mail collected from the Post Office and received at Unit 3, the opening and distribution of the mail at Unit 3, the number of staff there to whom mail was distributed, and Ms Mannile's state of recollection or lack of recollection of relevant events.