Sections 29 of the Acts Interpretation Act 1901 and 160 of the Evidence Act 1995 were considered recently in an application dealing with the validity of a Statutory Demand.
Section 29 deals with service of documents by post and has two limbs: a deemed service limb and a deemed time of service limb (time of delivery in the ordinary course of post). Section 160 of the Evidence Act has a presumed time of receipt of four working days for a postal article.
On 28 November 2006 the Australian Taxation Office (ATO) had posted a statutory demand to the company’s registered office at “Unit 3”. The defense was based on the ATO not being able to rely on either provision because “on the evidence” the statutory demand was not delivered to Unit 3. The company had no facility there for receipt of postal articles, but had a box at the local post office and the mail was collected by an employee of the company.
The section 160 presumption was that the statutory demand had been received at Unit 3 on 4 December 2006. Further, by posting the statutory demand to the company’s registered office, the Deputy Commissioner had served it on the company.
The next issue was whether the presumption in section 160 or the deeming in the second limb of section 29, both dealing with time of service, had been rebutted by evidence of the company. Lindgren J held that the defendant had not given evidence to raise doubt about the presumption. His Honour said: “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.”
The statutory demand was determined to have been served on 4 December 2006 albeit that the last part of the journey was performed by an employee of the company. The statutory demand had not been complied with within a period of 21 days after that date and thus the defendant was presumed to be insolvent.