Australia Post has altered the terms of postal delivery. The time for delivery of regular post will take an extra two days from the current. The new delivery times depending on the destination and will be between 3 to 6 business days.
This creates a problem with the statutory presumption of the time taken for delivery of postal articles under the Evidence Act 1995 (NSW).
Section 160 of the Evidence Act gives rise to a rebuttable presumption that a document sent by ordinary prepaid post is delivered on the fourth business day after it has been posted. Many deeds and agreements adopt the same deemed delivery timeframe in their notice clauses.
The effect of the change in delivery times is such that the ordinary prepaid post will, at best, now arrive on the last day when the post is presumed to have been delivered. It would not be unexpected for the delivery to take longer in practice.
Many critical time limits start from the time of service of documents via post, including in relation to the filing of a defence, complete of a contract or prepare an application to set aside a statutory demand. If a letter takes 6 business days to arrive but has deemed to have arrived 2 business days prior, then valuable time may have already been lost, in particular if the document was posted on a Monday, deemed to have been delivered on the Friday, but is actually delivered the following Tuesday.
For those seeking to serve parties with documents, it remains to be seen if the courts will accept that the presumption will hold for ordinary mail or if Australia Post’s own delivery times could be used as evidence to rebut the deemed time for delivery by post.
As such, it is more important than ever before to have a proper process in place to document the sending of all mail, including by recording which method has been used to send a letter, keeping a scan of the front of the letter showing which stamp was affixed, and where possible using an alternative means of delivery that can be more easily verified, including by registered post, express post, e-mail, fax or personal delivery, where possible.