Proposed Amendments to the Evidence Act 1995 (Cth)

Earlier this month, the Senate passed a Bill which, if passed by the House of Representatives, will amend the Evidence Act 1995 (Cth). One of the amendments is a change to the rules of evidence around posted articles.

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

This rule provided some 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]

The amendments to the Evidence Act will mean that articles will be presumed to be received after seven working days, not four. The government’s Explanatory Memorandum for the changes noted that this extension of the time was ‘to accord with changes to Australia Post delivery times.’[2]

The effect of this change will be twofold: firstly, it will mean that those sending documents will have to adjust their calculations as to when they can consider documents to have been served, and when they should expect a reply. 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 Amendments Bill has not passed the House of Representatives, so the changes are not official yet. Since the House sits again on 15 October, that is the earliest date at which the changes could be passed. They would then become law after they received Royal Assent from the Governor General, which usually takes about two weeks. It would, however, be wise to begin preparing for the changes so that when they are official, the transition will be smooth.

[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].

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Mark Harley

About Mark Harley | Principal

Mark has practiced in commercial law, commercial litigation and insolvency law for almost 10 years. He established the firm in 2014. With degrees in law and information technology, as well as being a director of several companies, Mark speaks the language of business owners and has a first hand understanding of the issues facing his clients.

This article was written with the assistance of Callum Woods, Paralegal, Boss Lawyers.