Dwyer v Canon Australia Pty Ltd

[2007] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

In the Matter of HARRIS SCARFE LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQ)

DWYER & ANOR v CANON AUSTRALIA P/L & ORS

[2007] SASC 100

Judgment of The Honourable Justice Debelle

23 March 2007

CORPORATIONS - LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS - SERVICE OF DOCUMENT ON COMPANY

Service of originating process – defendant asserts it did not receive documents – plaintiff asserts that documents were served by fax and post - whether service by post was proved – whether service by fax was proved – orders set aside – application made within time – leave to plaintiff to serve application again and have application re-heard.

Acts Interpretation Act 1901 (Cth) s 29; Acts Interpretation Act 1954 to 1962 (Q) s 39; Corporations Act (Cth) s 5C, s 109X, s 588FF; Corporation Rules 2003 R 1.3; Hire Purchase Act 1959 (Q) s 42; Supreme Court Rules 1987 R 12.05, referred to.
A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314; Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531; Bishop v Helps (1845) 2 CB 45; 135 ER 857; Fancourt v Mercantile Credits Ltd (1983) 157 CLR 87; Hastie & Jenkerson v McMahon [1991] 1 All ER 255; Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542; NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26; re Rustic Homes Pty Ltd (1988) 49 SASR 41, applied.
Rosefarms Pty Ltd v Stourhead Pty Ltd (2000) 155 FLR 24, distinguished.
Lady Anson v Trump [1998] 3 All ER 331; re WB Sharpe Constructions Pty Ltd (2001) 162 FLR 280; Australian Underwriting Agencies Pty Ltd and QBE Insurance Ltd (1999) 17 ACLC 22; Biotech International Ltd v Peptech Ltd (2000) 156 FLR 295; CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1993) 12 ACSR 136; FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd (1993) 12 ACSR 136; Griffith Producers Co-operative Company Ltd v Calabria (1996) 15 ACLC 19; Ketrim Pty Ltd v AS&L Pty Ltd (2004) 214 ALR 206; Mildura Aboriginal Corporation v Australian Broadcasting Corporation [2001] VSC 82; Packham Pty Ltd v Teo [2006] WASC 135; Parklands Blue Metal Pty Ltd v Kowari Motors Pty ltd [2004] 1 Qd R 140; Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714, considered.

DWYER & ANOR v CANON AUSTRALIA P/L & ORS
[2007] SASC 100

Civil

1. DEBELLE J.  This is an application to set aside an order made pursuant to s 588FF(3) of the Corporations Act (Cth) extending the time within which liquidators may bring proceedings under s 588FF. The essential question is whether the liquidators of a company have proved service upon Canon Australia Pty Ltd of the originating process seeking the extension of time.

2. Canon Australia Pty Ltd (“Canon”) is a defendant to a preference claim made by the liquidators of Harris Scarfe Limited and Harris Scarfe Wholesale Pty Ltd. By originating summons filed on 31 March 2004, the liquidators applied for an extension of time pursuant to s 588FF(3) within which to commence preference claims against a number of creditors of Harris Scarfe Limited and Harris Scarfe Wholesale Pty Ltd. Attached to the summons was a schedule called “Schedule A” which listed 28 creditors in respect of whom the application was brought. Canon is one of those creditors. The summons was supported by an affidavit of one of the liquidators. The application was made in the action numbered 351 of 2004.

3. On 14 April 2004 the liquidators’ application was heard by a Master of this court. The Master ordered that the time within which the liquidators could apply under s 588FF(1) against the creditors named in the application who had been served with the application be extended to 2 October 2005. The order was in these terms:

   1.In relation to the identified ascertained creditors who have been served with the extension application (being those parties set out in Schedule A to this Order), the period within which the plaintiffs may make an application under s 588FF(1) of the Corporations Act 2001 with respect to transactions alleged by them to be or to possible be voidable transactions be extended so as to expire at the conclusion of 2 October 2005.

   Canon says that it was not served with the application.  It therefore applies for an order setting aside the order made on 14 April 2004 so far as it applies to it. 

4. The solicitors for the liquidators are Phillips Fox.  They say that they served the application both by post and by facsimile transmission (“fax”).  They say that on 1 April 2004 they sent a letter by fax enclosing the originating summons and affidavit in support.  The letter also gave notice of the date of the hearing.  The letter was addressed to the registered office of Canon at 1 Thomas Holt Drive, Macquarie Park NSW 2113.  It is common ground that that was the correct address of the registered office of Canon.  The relevant part of the letter was in these terms:

   We act for Liquidators of the Harris Scarfe Group.

   We enclose, by way of service, an application and supporting affidavit seeking an extension of time to complete investigations and assess the merits of potential claims for voidable transactions.

   There is a potential claim against your company.  Accordingly, your company is a defendant named in the schedule to the application.

   The hearing is on 14 April 2004 at 10.50am.

   The solicitors say that the letter was also sent by post on 1 April 2004 and that the letter sent by post was stamped with the words “Confirmation of fax”.  The letter was one of 28 letters sent that day.  There was a real element of urgency since the time limit prescribed by s 588FF expired on 2 April 2004.

5. Before noting the detail of the facts proved by the liquidators, it is convenient to note the relevant statutory provisions.

   The Statutory Provisions

6. Section 109X of the Corporations Act provides for service of documents in these terms:

   109X(1)            [Service of document on company] For the purposes of any law, a   document may be served on a company by:

   (a)leaving it at, or posting it to, the company’s registered office; or

   (b)delivering a copy of the document personally to a director of the company who resides in Australia or in an external territory; or

   (c)if a liquidator of the company has been appointed – leaving it at, or     posting it to, the address of the liquidator’s office in the most recent       notice of that address lodged with ASIC; or

   (d)if an administrator of the company has been appointed – leaving it at,    or posting it to, the address of the administrator in the most recent      notice of that address lodged with ASIC….

   (3)     [Service and Execution of Process Act 1992]  Subsections (1) and (2) do        not apply to a process, order or document that may be served under section 9      of the Service and Execution of Process Act 1992.

   (6)     [Other methods of service not precluded]  This section does not affect:

   (a)any other provision of this Act, or any provision of another law, that            permits; or

   (b)the power of a court to authorise; a document to be served in a                  different way. 

   (7)     [Expression “serve”]  This section applies to provisions of a law dealing     with service whether it uses the expression “serve” or uses any other similar      expression such as “give” or “send”.

   Service by post is defined by s 29 of the Acts Interpretation Act 1901(Cth) which by s 5C of the Corporations Act applies to the Corporation Act.  Section 29 provides:

   29    Meaning of service by post

   (1)     Where an Act authorises or requires any document to be served by post,              whether the expression “serve” or the expression “give” or “send” or any          other expression is used, then unless the contrary intention appears the         service shall be deemed to be effected by properly addressing prepaying and         posting the document as a letter, and unless the contrary is proved to have          been effected at the time at which the letter would be delivered in the                 ordinary course of post.

   (2) This section does not affect the operation of section 160 of the Evidence Act                1995.

   In order to be able to establish service by post upon a company, it is therefore necessary to prove that the letter was

   ·properly addressed,

   ·pre-paid,

   ·posted as a letter, and

   ·sent to the registered office of the company.

   Service by post will not be established unless each of those facts has been proved.

7. Section 109X does not provide an exclusive means for service. It is facultative rather than mandatory and does not exclude other means of service: Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544. Service of certain documents can be validly effected by facsimile transmission: Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531 and NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26. However, documents sent by fax must come to the notice of the person for whom they are intended. Mere arrival at the receiving facsimile machine is not a completed act of service: Bank Leumi at 550 and NM Superannuation at 37 and 38.

   Non-Delivery and Non-Receipt Distinguished

8. If it is established that documents have been sent by post in the manner provided for by s 29(1) of the Acts Interpretation Act and by s 109X of the Corporations Act, the documents are deemed to have been served.  The rationale for these provisions is based on public convenience:  Bishop v Helps (1845) 2 CB 45 at 57; 135 ER 857 at 862 applied in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96. In order to avoid the effect of these deeming provisions, it is necessary to prove that the documents were not delivered: Fancourt at 96. Proof of non-delivery is effective as proof of non-service notwithstanding that service by post is in the circumstances permitted and the requirements of the Acts Interpretation Act have been observed:  Fancourt at 96 and the cases there cited.

9. It is important to note that non-delivery is not the same as non-receipt.  This proposition is emphasised in Fancourt at 97 where the High Court in a unanimous judgment considered the effect of s 39(1) of the Acts Interpretation Act of Queensland (which in all material respects is in the same terms as s 29 of the Commonwealth Acts Interpretation Act) and s 42(1)(c) of the Hire Purchase Act 1959 (Q) which permitted service by post.  The High Court said (at 97):

   As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is no disproved, the 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. There is here no evidence of non-delivery. It follows that the application of s 39(1) of the Acts Interpretation Acts in no way affects the proof of service of the notices in this case in accordance with s 42(1)(c) of the Hire-Purchase Act and that such service is deemed to have taken place in the due course of the post.  It also follows that the appellants fail to establish any defence under s 13(4) of the Hire-Purchase Act.

   Thus, it is not sufficient to prove non-receipt if it is intended to seek to establish that service by post has not been effected.  It is necessary to establish a more than positive fact than mere non-receipt by proving, say, that the post office has returned the documents: FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd (1993) 12 ACSR 136 at 138. In Fancourt, a demand was sent to a postal box.  Although the addressee claimed not have received the demand, it was held that service had been effected because there was no proof of non-delivery.  Other decisions which illustrate the difference between non-delivery and non-receipt are FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd and Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714.

   Canon’s Case

10. Canon asserts that it did not receive the documents either by post or by fax.

11. Mr Forte is employed by Canon as a Legal Recovery Officer.  In an affidavit, he has deposed that all matters of a legal nature received by Canon such as pleadings and letters of demand from solicitors are provided to him or to his colleagues in the Credit and Recovery Section of Canon.  He says that there is only a handful of people in that section so that each has a reasonable knowledge of the files of the others.  Notwithstanding the vagueness of that evidence, it was admitted without objection.

12. Mr Forte deposes to the fact that the first notice that Canon had of any proceedings involving the Harris Scarfe companies was on 29 March 2006 when an employee of Canon handed him a summons, statement of claim and other documents filed in the District Court of South Australia making a claim against Canon for the preferential payment.  He immediately instructed solicitors.

13. Mr Forte’s evidence is that he conducted a thorough search of Canon’s records and was unable to find any documents filed in the action 351 of 2004.  He says that he believes that Canon was not served with any documents in that action and that Canon did not receive any document giving notice of the hearing on 14 April 2004. 

14. Mr Forte also deposed to the fact that he spoke to Mr Chan who is the manager of the mail room at Canon.  He has been employed by Canon since about 1996.  Mr Chan informed Mr Forte that it is the standard practice of Canon that any mail which comes to the mail room from any court or any lawyer is delivered to the Credit and Recovery Section.  That was the practice in 2004 when the extension order was made.  Mr Forte has shown Mr Chan the documents which Phillips Fox say were sent to Canon on 1 April 2004.  Mr Chan has no recollection of seeing those documents or the accompanying letter.  Mr Chan informed him that it is rare for Canon to receive legal documents by fax but, when they are received in that way, they are treated as a priority.  Because it is relatively rare for legal documents to be sent by fax, he has a better recollection as to whether documents are received in that way.  He has no recollection of receiving the relevant documents. 

15. On analysis, Mr Forte’s evidence amounts to no more than evidence that Canon did not receive the documents. Canon is not able to prove that the documents were not delivered either by post or by fax. Canon has not established non-delivery. Its evidence establishes no more than it has not received the documents. If the liquidators are able to prove that the documents were posted, they will have the benefit of the statutory presumptions in s 109X of the Corporations Act and s 29 of the Acts Interpretation Act.  Alternatively, they may be able to prove service by fax.  I turn to examine the evidence.

    Was service by post proved? 

16. I consider first whether the documents were served by post.  For the reasons expressed earlier, liquidators must prove that

    ·a letter properly addressed to Canon at its registered office,

    ·was pre-paid, and

    ·was posted as a letter.

    Ms Stavrides, a solicitor employed by Phillips Fox, the solicitors for the liquidators, has sworn two affidavits seeking to prove that the summons and supporting affidavits were served by post and fax.  It is readily apparent from the two affidavits that Ms Stavrides has no independent recollection of the events but relies on documents in the file.

17. In the first affidavit sworn on 13 April 2004 Ms Stavrides simply stated that she had arranged for the 28 creditors listed in Schedule A to be served by post at the address of the registered office.  She did not state when or how the documents had been posted.  She did not prove that the postage was prepaid or that the letter had been posted.  She exhibited to her affidavit two copies of the letter sent to each of the companies enclosing the documents being served.  Both letters bear endorsements.  Those endorsements concern the sending of the letter by fax.  I will return to that question.

18. In her second affidavit Ms Stavrides gave evidence as to the office practice of Phillips Fox in relation to postage of letters and the office practice in relation to sending a letter prepared by a staff solicitor.  Ms Stavrides was a staff solicitor at the time.  She had drafted the letter sent to Canon and to the other creditors listed in Schedule A.  After she had drafted the letter, her administrative assistant then typed it.  The office practice required that the letter prepared by Ms Stavrides be presented to her supervising partner for signature.  That was effected by her administrative assistant handing the letter to the supervising partner’s administrative assistant who in turn arranged for the partner to sign it.  The partner’s administrative assistant, said Ms Stavrides, would then be responsible for posting the documents.  While that practice has been proved, there is no proof that the partner’s administrative assistant or any other person in fact posted the letter.  The identity of the partner’s administrative assistant is known.  It was a Ms Dawson.  Neither Ms Dawson nor any other person has proved postage of the letter or the office practice in relation to posting letters.  There was no post book or other record to prove the postage of the letter.  All that was proved was that the postage address labels used by Phillips Fox contain a return address.  She said that the letter to Canon had not been returned to Phillips Fox as an undelivered letter. 

19. Although Ms Stavrides has proved these office practices, there is no proof that the letter was in fact posted. Ms Stavrides has proved no more than that she prepared a letter. The only means by which Ms Stavrides purports to prove service by post is to say (in para 14 of her second affidavit) that the office procedures were followed and that the original copy of the letter and documents sent by fax were also sent by post and that the letter was stamped “Confirmation of fax”. That does not constitute proof of postage. No person has proved the fundamental facts required by s 109X of the Corporations Act and s 29(1) of the Acts Interpretation Act.  There is no proof that the documents had been placed in an envelope addressed to the registered office of Canon, that the envelope had pre-paid stamping and that it had been posted.  These are all matters which are capable of proof.  The liquidators have, therefore, failed to prove the documents were sent by post.  The fact that the letter to Canon had not been returned as undelivered does not establish proof that the letter was sent.

20. Counsel for the liquidators contended that Canon had not put the question of service by post in issue.  The submission can only be described as misconceived, if not extraordinary.  It betrays a complete misunderstanding of the case put by Canon.  From the outset, Canon’s position has been that it did not receive the documents and it required the liquidators to prove service by post.  Counsel for the liquidators initially relied on the first affidavit sworn by Ms Stavrides on 13 April 2004.  As already noted, it did not prove postage of the letter to Canon.  In the course of argument on 30 October 2006, I commented on the fact that the affidavit of Ms Stavrides did not prove service by post.  I referred to one practice adopted by some solicitors by which the sending of documents through the post can be proved.  I gave leave to the liquidators to file further affidavit evidence to prove the posting of the documents.  The second affidavit of Ms Stavrides sworn on 6 November 2006 was intended to provide that proof.  For the reasons already expressed it does not. 

1. The liquidators have failed to prove service by post.  The result may seem harsh.  However, the liquidators seek the benefit of a statutory provision.  They must, therefore, establish that they have done all that is necessary to come within that provision.  They have failed in that task.  For all that is known, the letter might not have been posted.

   Was Serviced by Fax Proved?

2. The next question is whether the liquidators have proved service by fax.

3. In her second affidavit Ms Stavrides explained the practice of Phillips Fox when sending documents by fax.  In doing so, she explained the endorsements on the two copies of the letter of 1 April 2004 exhibited to her affidavit.  When a document is sent by fax, the original is stamped “Confirmation of fax” and is sent by post as confirmation of the copy which has been sent by fax.  The file copy of the letter is also stamped “Confirmation of fax”.  She said that the letter dated 1 April 2004 to Canon was sent by fax and confirmed by the letter sent by post.  That letter was marked “Confirmation of fax”.  The first exhibit to Ms Stavrides’ affidavit was a copy of the file copy of the letter said to have been sent by post.  It was stamped “Confirmation of fax”.  The second copy of the letter dated 1 April 2004 exhibited to her affidavit bears endorsements made by a fax machine when, it is said, the letter was sent by facsimile transmission.  The document is headed “Transmission Report”.  The endorsements show that it was sent at 16.27 hours on 1 April 2004.  At the foot of the letter is a note of the result which is “CP”.  A legend at the foot of the document shows that the abbreviation “CP” means “Completed”.  Another endorsement shows that 20 pages were sent.  The letter and accompanying documents totalled 20 pages.  

4. From the endorsements which appear on the second copy of the letter dated 1 April 2004, it is reasonable to infer from one’s own experience that the letter was sent by fax.  However, it is not possible to determine whether a legible copy was received at the office of Canon.  No expert evidence was led to assist in determining the question whether a complete and legible copy of the document was received on the fax machine in the office of Canon in Sydney.  All that one can infer from the endorsements is that a fax was sent on 1 April 2004 between 4:19pm and 4:27pm, the fax machine at Phillips Fox took 7 minutes 14 seconds to send the 20 documents, and that the process was completed.

5. The purpose of serving a document is to ensure that its contents come to the notice of the person for whom it is intended:  Hastie & Jenkerson v McMahon [1991] 1 All ER 255 at 259; Howship Holdings Pty Ltd v Leslie at 544. That result can be achieved whether the document be served personally, by post or by fax: Hastie & Jenkerson v McMahon at 259. Service by fax is, therefore, good service provided that there is proof that the document in a complete and legible state has been received by the intended recipient: Hastie & Jenkerson v McMahon at 259 to 260 per Woolf LJ and at 264 to 265 per Glidewell LJ; NM Superannuation Pty Ltd v Hughes at 36; Australian Securities Commission v Bank Leumi Le-Israel; Biotech International Ltd v Peptech Ltd (2000) 156 FLR 295. Service of originating process by fax is also good service where Rules of Court permit it: re WB Sharpe Constructions Pty Ltd (2001) 162 FLR 280.

6. The decision in Hastie & Jenkerson v McMahon placed an important limitation upon service by fax, namely, that it was not a permissible mode of serving originating process, that is to say, documents which initiate proceedings.  Woolf LJ said:

   Special considerations apply to writs and other documents used for initiating legal proceedings and nothing in this judgment is intended to apply to such documents. 

   In that case the court held that service of a list of documents was permitted by facsimile.  In Griffith Producers Co-operative Company Ltd v Calabria (1996) 15 ACLC 19 McLelland CJ in Eq agreed with that limitation and held that service of a statutory demand under the Corporations Law could not be effected by fax. That decision was distinguished in Parklands Blue Metal Pty Ltd v Kowari Motors Pty ltd [2004] 1 Qd R 140 where service by fax was admitted. Given that the purpose of service of a document is to ensure that its contents come to the attention of the recipient, it might be said that there is no reason in principle why service of originating process by fax should not be good service provided that it is established that it was received in complete and legible form. However, there are other considerations such as time limits which might have to be considered as in Griffith Producers.  In the particular circumstances of this case, the issues can be resolved without having to determine that interesting question.

7. Sub-rule (2) of Rule 1.3 of the Corporation Rules 2003 picks up the rules of the Supreme Court in so far as they are relevant and not inconsistent with the Corporation Rules.  In April 2004 the Supreme Court Rules 1987 were the rules in force.  Rule 12.05 of those rules prescribed methods of non-personal service.  Rule 12.05(1)(g) permitted service by fax only where an address for service includes a number for facsimile transmission.  The rule is in these terms:

   (g)by facsimile transmission to a number given in the address for service for that purpose, but only where the address for service is that of a solicitor and contains a number for facsimile transmission.

   Plainly, the rule by its terms excluded service of originating process by fax upon a party.  There is, therefore, nothing in the Rules of this Court which authorised   service by fax of originating process.  The service by fax in this case will be good service if the common law requirements are satisfied and, in particular, there is proof that the documents sent by fax were received in complete and legible form.

8. As already mentioned, the address on the letter was the correct address of the registered office of Canon.  The endorsements on the transmission report establish that the sender of the fax used the correct telephone number for sending a fax to Canon.  The question is whether the documents were received in complete and legible form.  No expert evidence was led on this issue.  The only evidence which might point to the conclusion that the documents were received is the endorsement “CP”.  However, that endorsement establishes no more than that the electronic process has been completed.  While it might establish that something was received by the fax machine at Canon, it does not establish that all of the 20 pages sent were received in a complete and legible form. 

9. Common experience informs that, not infrequently, the whole of the document is not received by the intended recipient.  On other occasions, the person sending the fax might err in failing to feed the document properly into the fax machine so that blank pages are sent.  An example of the latter occurred in Mildura Aboriginal Corporation v Australian Broadcasting Corporation [2001] VSC 82, where the documents received included blank pages. In that case there was evidence from the recipient of what in fact had been received. The documents which were intended to be sent were two letters. One letter was received in legible form. The blank pages were intended to be the second letter. Despite the fact that the sender’s fax machine produced a transmission report to the effect that all pages had been sent and despite the fact that a cover sheet referred to “offers of compromise”, Hedigan J followed Hastie & Jenkerson v McMahon and held that the second letter had not been received.  In doing so, Hedigan J rejected a contention that so long as the document sought to be faxed was put in the sender’s fax machine properly, that would constitute good service, even if what emerged at the other end was not the reproduction of the document which was intended to send.  I respectfully agree. 

10. So far as my researches disclose, there is no decision (reported or unreported) where it has been held that proof of the sending of the document by fax is sufficient proof of service except where Rules of Court permit it: Lady Anson v Trump [1998] 3 All ER 331; re WB Sharpe Constructions Pty Ltd or where a party provides a number to which a fax can be sent: Australian Underwriting Agencies Pty Ltd and QBE Insurance Ltd (1999) 17 ACLC 22. Indeed, it is unlikely that such a decision would exist because what must be established is that the document has come to the attention of the intended recipient. That can only be established if there is proof or an admission from a person who has received the fax that the document was in fact received in a complete and legible form. Facsimile transmission and other forms of electronic transmission are used extensively in trade and commerce. They provide an almost instantaneous means of communication, a factor which makes them particularly attractive for prompt resolution of commercial transactions. However, notorious weaknesses in the process of sending documents by fax are the fact that the documents might not be received and human error may mean that documents are not correctly sent. While it is desirable to adapt court process to modern technology, that object can only be achieved if there is a reliable means of ensuring that the whole document is received. It is for that reason that I do not share the view of Higgins J in Rosefarms Pty Ltd v StourheadPty Ltd (2000) 155 FLR 24 that proof of transmission will suffice to prove that the documents were received in complete and legible form. In all the decisions where service by fax has been held to be good service other than where Rules of Court permit it, there was proof (in all cases by the recipient) or an admission of the time of the receipt, of the documents which had been served, and of the form of the documents which had been received. See Hastie & Jenkerson v McMahon; CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1993) 116 FLR 456 Australian Securities Commission v Bank Leumi Le-Israel at 549 to 550; NM Superannuation Pty Ltd v Hughes at 36; Biotech International Ltd v Peptech Ltd at [41] to [42]; Mildura Aboriginal Corporation v Australian Broadcasting Corporation at [6]; Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd; Ketrim Pty Ltd v AS&L Pty Ltd (2004) 214 ALR 206; Packham Pty Ltd v Teo [2006] WASC 135.

11. In her second affidavit Ms Stavrides states that another letter dated 22 April 2004 was sent by fax and by post to Canon informing it of the orders made on 14 April 2004.  The letter also referred to the fact that Canon had not attended the hearing on 14 April 2004.  She says that no response was received to that letter and that letter was not returned as undelivered.  This evidence traverses outside the grant of leave to adduce further evidence as to the posting of the letter on 1 April 2004.  The issue is whether the originating process was served. 

12. In this case no more has been established in that Phillips Fox sent the letter of 1 April 2004 by fax.  There is a complete absence of proof of receipt of the documents in a complete and legible form.  The liquidators have, therefore, failed to prove service by fax. 

    Conclusion

13. When reduced to its essentials, this is a case where it is asserted that originating process has been served but there has been a failure to prove service whether by post or by fax or by any other means.  This is not a case where there is proof the documents have been served but have not come to the notice of the party for whom they are intended.  Instead, there is simply no proof that the documents had been served.  Where service of process by post is permitted and where there is proof of service and the documents are not returned, the documents are assumed to have been delivered in the ordinary course of post so that a judgment or order obtained on the faith of that assumption is regular.  It will not be set aside except on terms as to payment of costs and proof of merit.  But, if there is no proof of service or if the letter has been returned undelivered, a judgment or order obtained by default is irregular and well be set aside as of right: A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314; re Rustic Homes Pty Ltd (1988) 49 SASR 41 at 45. In the absence of proof of service, the judgment was irregularly obtained. I will, therefore, set aside the order of 14 April 2004 so far as it applies to Canon. However, as the application under s 588FF(3) was made within time, there will be liberty to the liquidators to serve the application again and list the application for re-hearing in respect of Canon.