Eventcepts Pty Ltd v Creative Talent Management Pty Ltd
[2017] VSC 457
•11 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2017 00208
| EVENTCEPTS PTY LTD (ACN 131 807 675) | Plaintiff |
| v | |
| CREATIVE TALENT MANAGEMENT PTY LTD (ACN 605 696 964) | Defendant |
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JUDGE: | GARDINER AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 April 2017 |
DATE OF JUDGMENT: | 11 August 2017 |
CASE MAY BE CITED AS: | Eventcepts Pty Ltd v Creative Talent Management Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 457 |
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CORPORATIONS – Corporations Act 2001 (Cth) – Application to set aside statutory demand under s 459G – Determination of preliminary issues as to whether application has been made within the time prescribed by s 459G – Demand served immediately prior to Christmas and New Year holiday period and neither party able to provide evidence as to the exact date upon which the demand was served at the plaintiff’s registered office – Determination of when the service of the demand was effected – Acts Interpretation Act 1901 (Cth), s 29 – Evidence Act 2008 (Vic), s 160 – Evidence that “the ordinary course of post” in the range of two to six business days after the date of posting but possibly longer in the Christmas - New Year holiday period – Finding that it was probable that demand delivered in the later part of that range and the application was made within time – Affidavit in support of originating process to set aside statutory demand was missing one page in both the original affidavit filed with the Court and copy served on the defendant – Whether plaintiff has made application to set aside the statutory demand validly under s 459G in circumstances where the affidavit filed and served in support of the application does not accord with the original affidavit as sworn – Held that document filed and served was an affidavit within the meaning of s 459G(3)(a) despite the missing page.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E W Moon | Whiting Lawyers |
| For the Defendant | Mr D P Lorbeer | Sladen Legal |
TABLE OF CONTENTS
The application................................................................................................................................... 1
The evidence on the issue of service.............................................................................................. 2
Eventcepts’ evidence as to service............................................................................................. 2
Creative Talent’s evidence as to service.................................................................................... 6
Legal principles.................................................................................................................................. 8
The omission of the page from the affidavit……………………………………………………18
HIS HONOUR:
The application
The plaintiff (‘Eventcepts’) makes application by originating process filed 23 January 2017 pursuant to s 459G of the Corporations Act 2001 (Cth) (‘the Act’) for an order that the statutory demand dated 22 December 2016 served by the defendant (‘Creative Talent’) on Eventcepts be set aside.
Creative Talent contends that Eventcepts has not made a valid application under s 459G of the Act and the proceeding should be dismissed. The hearing on 4 April 2017 involved the determination of two preliminary issues:
(a) whether the application was made within the 21 day period prescribed by s 459G of the Act i.e. within 21 days after service of the demand on Eventcepts; this involves a determination of the date on which the demand was served on Eventcepts;
(b) in circumstances where both the affidavit filed in support of the application with the Court and the copy of which was served on Creative Talent were missing a page from the affidavit as sworn meant that an application had not been ‘made’ within the meaning of s 459G(3) because ‘an affidavit’ of the type mentioned in ss 459G(3)(a) and (b) must be the affidavit in its complete form as sworn by the deponent.
For the reasons which follow, I consider that the application has been made within time and that it is a valid application notwithstanding that the affidavit which was filed and the copy served did not conform with the affidavit as sworn.
In large part, the Court has been required to resolve the first of these issues by reason that the statutory demand was posted by Creative Talent’s solicitors on the evening of Thursday, 22 December 2016. The Act says nothing that prevents such a course of action, however it is well known that many are absent from their place of business in the period from immediately prior to Christmas for the following several weeks. In this case neither party is able to state definitely the actual date when the demand was physically delivered at Eventcept’s registered office and reliance was sought to be placed on the presumptive provisions of s 160 of the Evidence Act 2008 (Vic) and s 29 of the Acts Interpretation Act 1901 (Cth).
Identification of the date of service of a statutory demand is crucial in determining whether a court has jurisdiction to entertain an application to set aside that demand. In my view, there is considerable potential for an injustice occurring in circumstances such as this, where those who are responsible for reacting to the demand in a small proprietary company with few staff are likely to be absent from the company’s registered office during the greater part of the period that the Act requires reaction to the demand and, in particular, to bring a timely application to set it aside if that course is indicated.
In the present circumstances, if the Court finds that service of the demand was effected on 3 January 2017, Eventcepts’ application is within time. Eventcepts accepts that if it is determined to have been served prior to that date, the application has been made beyond the period prescribed by s 459G(3) of the Act and the Court does not have jurisdiction to hear it.
Eventcepts relies on affidavits of its director, Connie Marie Paglianiti sworn 23 January 2017, 15 February 2017 and 3 March 2017, its solicitor David Brett, sworn 7 February 2017 and 3 April 2017 and of Shariqa Anjum Shaheed sworn 17 February 2017. Creative Talent relies on affidavits of Pina Graziani sworn 3 February 2017 and 24 February 2017 and an affidavit of its director, Lilit Chakman sworn 24 February 2017.
The evidence on the issue of service
Eventcepts’ evidence as to service
In her first affidavit, Ms Paglianiti, who is the sole director of Eventcepts, deposes that Eventcepts received the statutory demand at its registered office at level 1, 113-119 Lygon Street, Carlton on 3 January 2017. The balance of the affidavit is concerned with the alleged genuine dispute which is sought to be raised by Eventcepts.
In her second affidavit Ms Paglianiti descends into considerably more detail as to the circumstances of the service of the demand. Eventcepts leases an office on the first floor from Australia Post at the Lygon Street premises which serves as both its registered office and principal place of business. Australia Post operates a post office on the ground floor of the Lygon Street premises.
Ms Paglianiti states that she is the only person permanently employed in Eventcepts’ business. She attended Eventcepts’ Lygon Street office on 23 December 2016 at 12.35pm to check the mail and to see if there were any messages that required a response. She states there was no mail from Creative Talent’s solicitors, Sladen Legal, and she left the office some four minutes later. She knows this to be the exact time and length of her visit as in order to gain entry she had to disable and rearm the alarm system and those actions are electronically recorded. She exhibits a copy of the alarm log for the office for the period between 22 December 2016 and 3 January 2017 which records the arrival and departure times for this and the subsequent visits she made to the Lygon Street office.
Ms Paglianiti said that she again attended Eventcepts’ office on Saturday 24 December 2016 at 10.20am to check the mail and to see if there were any messages that required attention. There was no mail from Creative Talent’s solicitors and she left the office four minutes later.
Eventcepts’ office was unattended from 10.24am on 24 December 2016 and remained closed over the Christmas and New Year period.
Ms Paglianiti states that she next attended the registered office at 8.46pm on the evening of Tuesday 3 January 2017 to check the mail. There was only one letter in the post box which was the letter from Creative Talent’s solicitors containing the statutory demand the subject of this application.
The following day she spoke with the manager of the Australia Post Office at Lygon Street Carlton (whom she identifies in a subsequent affidavit as Ms Karen McDonald) and was advised by Ms McDonald that ordinary post items sent over the Christmas and New Year period were taking up to ten days to be delivered. Ms Paglianiti exhibits a copy of the Australia Post web page which she accessed on 9 February 2017. That webpage indicates that a letter sent by regular post (which she assumes to be ordinary post) from Melbourne to Carlton is estimated to take between two to six business days for delivery.
On 8 February 2017, Australia Post responded to an email inquiry initiated by Ms Paglianiti ‘s solicitor on 2 February 2017 which sought clarification of the Australia Post delivery estimates for letters sent by ordinary post from Melbourne to Carlton. Australia Post confirmed that their delivery estimate ‘is always 2-6 business days’…however…’please keep in mind that this is only an estimate and over the holidays it is not uncommon for articles to take a little longer’.
In her final affidavit, Ms Paglianiti states that on 4 January 2017 she attended the Australia Post Office in Lygon Street Carlton and spoke with Ms McDonald who advised her that items sent by ordinary post over the Christmas and New Year period were taking up to ten days to be delivered.
She states that on 28 February 2017 she again spoke to Ms McDonald and showed her copies of the affidavits sworn on behalf of Creative Talent by Lilit Chakman on 24 February 2017 and Pina Graziani on 3 February 2017. There is reference in those affidavits to the involvement in the mail delivery process of Mail Plus, a franchised courier service engaged by Creative Talent’s solicitors. She reaffirmed that during peak periods, including the Christmas and New Year period, ordinary post items were taking longer to be delivered than the official Australia Post guidance literature indicated. She states that Ms McDonald provided her with a printed Australia Post customer advice which states that:
(a) Priority post deliveries take 1-4 business days calculated from the day after posting;
(b) regular post deliveries take up to 2 business days longer than Priority post;
(c) by reference to the Australia Post business days, the calculation of delivery days based on the assumption that an item was ‘posted’ on Thursday 22 December 2016 is as follows:
(i) Friday 23 December 2016 – ordinary day of work – day 1;
(ii) Saturday 24 December 2016 – closed;
(iii) Sunday 25 December 2016 – closed;
(iv)Monday 26 December 2016 – closed;
(v) Tuesday 27 December 2016 – closed;
(vi)Wednesday 28 December 2016 – closed (Australia Post authorised holiday);
(vii) Thursday 29 December 2016 – ordinary day of work – day 2;
(viii) Friday 30 December 2016 – ordinary day of work – day 3;
(ix) Saturday 31 December 2016 – closed;
(x) Sunday 1 January 2017 – closed;
(xi) Monday 2 January 2017 – closed;
(xii) Tuesday 3 January 2017 – ordinary day of work – day 4.
The affidavit of Shariqa Shaheed exhibits an Australia Post webpage which was displayed when a search under the terms ‘Australia Post Christmas delivery 2016’ was conducted. The webpage states that Wednesday 28 December 2016 was an ‘Australia Post authorised holiday’ on which no deliveries were made (although post offices were open).
The statutory demand was therefore delivered to Eventcepts at its registered office by no later than the fifth business day (and the fourth day on which Australia Post delivered mail) after posting.
Creative Talent’s evidence as to service
In her affidavit of 3 February 2017, Pina Graziani, an employee of Creative Talent’s solicitors, deposes that she sent the relevant documents to Eventcepts:
by posting the documents to Eventcepts Pty Ltd on 22 December 2106 [sic] at 4.35pm by ordinary post in an envelope addressed to its registered office at Level 1, 113-119 Lygon Street, Carlton Victoria, 3053.
In her affidavit of 24 February 2017 Ms Graziani elaborates on her earlier affidavit by stating that on 22 December 2016 the mail at Sladen Legal was collected at approximately 4.40pm by Mail Plus. She deposes that Mail Plus is a “service agent” of Australia Post. She states that:
I had reconfirmed by a delivery driver who I understand to be called ‘Joe’ who works with Mail Plus on 8 February 2017 that once collected Mail Plus then delivers the mail to the Australia Post Business Centre in Bertie Street, Port Melbourne for sorting and delivery. I had already been aware of this service that Mail Plus provides as an agent of Australia Post, as it was a factor in the decision made by Sladen Legal about three years ago as to promptness of delivery.
In her affidavit, Lilit Chakman, a director of Creative Talent, states that on 8 February 2017 she spoke with Ms Graziani who informed her that all mail, and specifically letters, from Sladen Legal’s office at 707 Collins Street Melbourne is collected by Mail Plus prior to 5pm each day and that it is delivered to the Bertie Street, Port Melbourne delivery centre of Australia Post. She states that she also made inquiries with Australia Post by telephone on 8 February 2017. She states that she spoke with a person who identified himself as David of Australia Post at the Australia Post call centre in Brisbane and was informed of the following details regarding the Australia Post process of posting letters by ordinary prepaid post within the metropolitan area of Melbourne:
(a) first the mail that is taken by the postal vans or contractors such as Mail Plus to the Bertie Street, Port Melbourne delivery centre is sorted overnight by postcodes and suburbs and delivered to the relevant suburban hub for delivery, which, for the Carlton area, is the Laurens Street North Melbourne delivery centre;
(b) the post is collected from the Laurens Street North Melbourne delivery centre by Australia Post personnel on motorised bikes or scooters and delivered to the street address that day;
(c) the postal employee who she spoke with indicated there was a difference between the Australia Post process of posting letters by ordinary pre-paid post within the geographical area of metropolitan Melbourne, where the movement of letters goes from one delivery centre to the nearest destination delivery centre, and delivery of letters by ordinary pre-paid post which arrive from other states to Victoria, the latter utilising another delivery centre outside the metropolitan Melbourne area;
(d) she states that the employee informed her that the Port Melbourne delivery centre and the North Melbourne delivery centre were open on 22, 23, 29 and 30 December 2016 and were delivering mail on all those days. He also informed her that for the period of 22, 23, 29 and 30 December 2016, within the geographical area between Melbourne Central Business District and Carlton, Australia Post was “quoting” delivery times of minimum of one or next business day and a maximum of two business days with respect to letters posted by ordinary pre-paid post. She states that her understanding from the discussion with the employee is that the mail collected from her solicitors was collected on Thursday 22 December 2016 and taken on that day to the Bertie Street Port Melbourne delivery centre for sorting. All mail is then sorted by postcode and suburb at the Port Melbourne facility overnight on 22 December 2016. The next day (or the next delivery day after that, which would be on Thursday 29 December 2016), a delivery was made to the Laurens Street North Melbourne delivery centre and the mail was then delivered that day to the addresses which include the address in Lygon Street Carlton.
Legal principles
The posting of the demand as evidenced by the affidavits of Ms Graziani was a permitted method of service under s 109X(1)(b) of the Act. However, that provision does not stipulate when service is effected or deemed to be effected and it is necessary to determine when the demand was delivered to the registered office of Eventcepts by Australia Post. This can be proved by direct evidence as to the actual date of delivery, which is not available in this case or by resort to s 29 of the Acts Interpretation Act 1901 (Cth) (‘AIA’) and s 160 of the Evidence Act (2008) (Vic).
Section 29 of the Acts Interpretation Act 1901 (Cth) (‘AIA’) provides:
(1)Where an Act authorizes 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 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.
There are two limbs to s 29(1), the first being described by Lindgren J as the deemed service limb and the second the presumed time of service limb.[1] Here the first limb has been established by the evidence of Ms Graziani and this was conceded by Mr Moon, counsel for Eventcepts, at the hearing of this matter. The second limb deems the time that service of a demand is effected at a later time, namely the time at which the letter would be delivered in the ordinary course of post[2] unless ‘the contrary is proved.’
[1]See DCT v Trio Site Services Pty Ltd [2007] FCA 776 at [20] per Lindgren J.
[2]Perpetual Nominees v Masri Apartments Pty Ltd (2004) 49 ACSR 714 at [21] See generally Assaf Statutory Demands and Winding Up in Insolvency at para 3.54 -3.65.
In Howship Holdings Pty Ltd v Leslie[3] Young J, as he then was, in considering the operation of the precursor to s 29, s 109Y of the Corporations Law, stated:
However s 109Y says that unless the contrary is proved , so that there is the obligation on a person alleging the contrary to prove on the balance of probabilities when service did take place.
[3](1996) 21 ACSR 440 at 446.
In Bowman v Durham Holdings Pty Ltd the High Court stated that the phrase:
the ordinary course of post is not I think, concerned with the particular idiosyncrasies of a particular addressee but rather with the general delivery practice of the postal service.[4]
[4](1973) 131 CLR 8 at p. 14 per Stephen J, Barwick CJ and Menzies J agreeing.
In Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd,[5] Ferguson J (as her Honour then was) considered the statutory provisions regarding service of a statutory demand under the Corporations Act 2001 (Cth).[6] Her Honour approved of the reasoning of White J of the Supreme Court of New South Wales in Scope Data Systems Pty Ltd v Goman[7] in relation to the interaction between s 29 of the AIA and s 160 of the Victorian Evidence Act (which is in the same terms as s 160 of the Federal Evidence Act). She stated:[8]
[5][2010] VSC 385.
[6]In Renegade, the demand was posted shortly prior to the Christmas period on 21 December 2009. In Guzdote v Ashley (2011) 82 ACSR 469, a case in which the demand was posted on 23 December, there was direct evidence of the solicitor for the company as to the date of delivery at the registered office and affidavit evidence of an Australia Post manager who was responsible for the monitoring of the service performance of mail posted in the area in question.
[7](2007) 70 NSWLR 176 at 186-187.
[8]At [18]–[20].
His Honour considered the effect of s 79 of the Judiciary Act 1903 (Cth). Section 79(1) provides:
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
His Honour noted that the effect of this section is that unless the Corporations Act or the Acts Interpretations Act (Cth) made other provision, s 160 of the State Evidence Act applied:
as a means of proving when a document is taken to have been delivered in the ordinary course of post, or, if it is established that the document was not delivered in the ordinary course of post, when it is taken to be delivered.
His Honour noted that it would be a remarkable outcome if s 160 of the State Act did not apply in a proceeding in a State Court, yet the identical provision in the Commonwealth Act would apply in a proceeding in the Federal Court because of the effect of s 29(2) of the Acts Interpretation Act (Cth). His Honour concluded that s 29(1) of the Acts Interpretation Act (Cth) and s 160 of the State Evidence Act could operate harmoniously and held:
In my view, the position is as follows. If the evidence establishes the time at which the article is delivered to the postal address, then that is the time at which service is taken to be effected. If the evidence does not establish the time at which delivery was effected, then, unless the contrary is proved, delivery is deemed to have been effected in the ordinary course of post. What that is is a question of fact to be proved by the evidence. In the absence of evidence on the topic, and in the absence of any presumption, there will be no proof that the article was delivered at a particular time. If it is established that the article was not delivered in the ordinary course of post, but the evidence does not establish when it was delivered, then again there will be no evidence as to the time of delivery. In either case s 160 of the Commonwealth Evidence Act (applicable to New South Wales courts), affords a presumption as to when the article is taken to have been delivered. The presumption may assist in proving when delivery was made in the ordinary course of post. If the evidence shows that the article was not delivered in the ordinary course of post, the presumption may assist in proof of when the document was delivered.
In Renegade, as in this case, there was no evidence as to when the statutory demand was received at the company’s registered office. Ferguson J indicated that in those circumstances, the following matters required consideration:
(a) proof of posting of the statutory demand and supporting affidavit and the date of posting;
(b) evidence of the ordinary course of post; and
(c) whether it has been established that the statutory demand and affidavit in support were not delivered in the ordinary course of post.[9]
[9]Renegade, [21].
Mr Moon, counsel for Eventcepts, accepted that the envelope containing the statutory demand and affidavit in support was posted on 22 December 2016. Creative Talent’s evidence in that regard refers to the intervention of Mail Plus in the postage process, but Eventcepts made no submission that such intervention took the postage of the demand outside the ordinary course of post.[10]
[10]It is not clear on the evidence whether Mail Plus in these circumstances was acting as the agent of Australia Post or Creative Talents.
The evidence as to when the envelope containing the demand would be delivered in the ordinary course of post in these circumstances is as follows:
(a) the information displayed on Australia Post’s website on 9 February 2017, stating that delivery from Melbourne 3000 to Carlton South Vic 3053 takes between two to six business days;[11]
[11]Exhibit CP-2 to the affidavit of Connie Marie Paglianiti sworn on 15 February 2017. There is no evidence that the envelope posted on 22 December 2016 was sent priority with an estimated delivery time of 1 to 4 business days.
(b) the email of Benjamin, from Australia Post Customer Care, sent on 8 February 2017 to David Brett of Whiting Lawyers, Eventcepts’ solicitors, stating that Australia Post’s estimate is always two to six business days[12] and that this is only an estimate and it is not uncommon over the holiday period for articles to take a little longer;
[12]Affidavit of Connie Marie Paglianiti sworn on 15 February 2017 at [11] and exhibit CP-3.
(c) the letter from the Postal Manager of the Australia Post Office, Carlton South stating that an article such as the envelope containing the statutory demand ‘could take up to six business days to be delivered’;[13]
(d) Australia Post’s customer advice stating that regular mail can take ‘up to 2 business days longer than priority mail i.e. up to 6 business days after posting;[14] and
(e) the advice from ‘David’ at the Australia Post call centre in Brisbane to Ms Chakman, that Australia Post was quoting delivery times of a minimum of one or next business day and a maximum of two business days with respect to letters posted by ordinary prepaid post.[15]
[13]Affidavit of Connie Marie Paglianiti sworn on 3 March 2017 at [4] and exhibit CP-1.
[14]Ibid.
[15]Affidavit of Lilit Chakman sworn on 26 February 2017 at [18].
It will be seen that the evidence adduced by the parties on this issue is not direct evidence but this is perhaps not unusual. For example, in Gabriel Hotels Pty Ltd v Corlita Pty Ltd, White J of the New South Wales Supreme Court admitted evidence of a statement on a letterbox maintained by Australia Post of delivery times.[16]
[16][2010] NSWSC 826. In Scope Data his Honour remarked that an Australia Post timetable setting out expected delivery times were to be regarded as ‘statements of aspiration only in the absence of evidence of how frequently such a timetable was adhered to.’ See generally Assaf at para 3.60.
Mr Moon observed that the basis on which David, of the Australia Post call centre in Brisbane, appeared to contradict the information contained on the Australia Post website and confirmed by its other Customer Care representative and the manager of the Australia Post Office at Carlton South, is not explained. In particular, the reference to quoting delivery times is contrary to the official material published by Australia Post on its website and confirmed by other employees and representatives, including the manager of the post office in Carlton South, at which the letter containing the demand was processed. Mr Moon also observed that Ms Chakman’s affidavit does not reveal what position David held at Australia Post, his surname and in what capacity he came to make the comments he did.
Mr Moon submitted, and I agree, that there is no evidence on which the Court can find that the statutory demand and supporting affidavit would have been delivered in the ordinary course of post on 29 December 2016, 30 December 2016 or 3 January 2017. This is because the evidence that Australia Post estimates for the delivery of postal articles is imprecise, being in the range of between two and six business days after posting and, in the holiday period, it was not uncommon for it to take longer. As such, the demand could be expected to be delivered on 29, 30 December 2016 or 3 January 2017 (by which date it is clear that it had been delivered).
This evidence is supported by the following additional evidence:
(a) on 4 January 2017, Ms Paglianiti was advised by Ms McDonald, the manager of the Australia Post office at Lygon Street, that ordinary post items sent over the Christmas and New Year period were taking up to ten days to be delivered; and
(b) the advice contained in the Australia Post Customer Care representative’s email that it is not uncommon for articles to take longer over the holidays.
For the reasons outlined by Ferguson J in Renegade Rigging, in circumstances where there is no evidence of the actual delivery of the statutory demand and once formal proof of posting is accepted, the first task is to focus on when the demand would have been delivered in the ordinary course of post. Creative Talent carries the onus on this issue.[17] Mr Moon submitted, and I agree, that for the reasons outlined above, there is no acceptable date on which the Court can find when the statutory demand would have been delivered in the ordinary course of post.
[17]Formosa House Pty Ltd v Chang [2010] VSC 474 at [18] (per Ferguson J).
On the other hand, Eventcepts, which bears the onus of proving the contrary under s 29(1) of the AIA, is not able to prove that the demand was not delivered in the ordinary course of post.
In the absence of specific evidence as to when the demand and affidavit in support would have been delivered by Australia Post in the ordinary course of post, it is necessary to determine the question of service by reference to the operation of s 160 of the Evidence Act2008 (Vic).
Section 160 of the Evidence Act 2008 (Vic) provides:
(1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
…
(3) In this section:
working day means a day that is not:
(a) a Saturday or Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
Section 160 assists in the proof of the fact as to what is the ordinary course of post by creating a presumption which would apply unless sufficient evidence is adduced to displace the appropriateness of the application of the presumption. That is, if there is insufficient evidence to raise doubt about the presumption in s 160, the presumption will apply and the postal item will be deemed to have been delivered on the fourth working day after it was posted.
The application of s 160 of the Evidence Act2008 (Vic) to these facts centres around 28 December 2016 and, in particular, as to whether 28 December 2016 is a working day for the purposes of s 160(1) of the Evidence Act2008 (Vic) even though Australia Post did not deliver mail on that day.[18] The significance of this is that if 28 December 2016 is regarded as a working day in this context, unless there is sufficient evidence to raise doubt about the presumption in s 160 applying, the demand will be deemed to have been served on the fourth working day after posting, being 30 December 2016, and Eventcepts’ application has been made out of time.
[18]In Gusnote, the evidence was that 31 December 2009 was an Australia Post authorized holiday however it was assumed that that day was not a “working day” for the purposes of computing time from the date of posting (see [69])
In the context of a provision concerning the number of days to run for deemed service of postal articles to occur, the ordinary and natural meaning of working day, as contained in s 160(1), would be a day on which Australia Post delivers mail. However, the definition of working day contained in s 160(3) is a day that is not a Saturday, Sunday, a public holiday or bank holiday in the place to which the postal article was addressed.
Eventcepts concedes that Wednesday 28 December 2016 was not a public holiday or a bank holiday (within the literal meaning of that phrase, i.e. a day when banks are not open for business) in Melbourne. Parliament’s decision to include a definition of working day in s 160(3) and define that term, inter alia, as not including a bank holiday is remarkable for two reasons. First, the definition in s 160(3) does not account for the fact that there are days, other than Saturdays, Sundays, public holidays and bank holidays, that Australia Post does not deliver mail, such as was the situation in this case on 28 December 2016. Second, it provides for deemed service of postal articles by reference to bank holidays when they are delivered exclusively by Australia Post.[19]
[19] The term bank holiday is contained in a small number of Commonwealth Acts as part of the definition of business day ( For example, see the definition of business day contained in s 9 of the Act) or as a means of calculating time (For example, see ss 33, 43, 44, 61, 71, 72 and 105 of the Service and Execution of Process Act 1992 (Cth)). Similarly, in Victoria, the term ‘bank holiday’ is retained in 10 pieces of Victorian legislation despite the fact that the Bank Holidays Act 1958 (Vic) was repealed by the Public Holidays Act 1993 (Vic). Previously, the Commonwealth Parliament has sought to introduce a uniform definition of business day. By the Acts Interpretation Amendment Act 2011 (Cth) (‘the AIAA’), a definition of business day was introduced into s 2B of the AIAA to mean: ‘a day that is not a Saturday, a Sunday or a public holiday in the place concerned’ (The application of the AIAA is subject to a contrary intention; see s 2(2) of the AIA).
This being so, how should s 160, a provision concerned with when an article would be deemed to be delivered by post, be interpreted as applying in the present case? Interpreted literally, the four day period would include 28 December 2016 notwithstanding that the process of mail delivery was not taking place on that day.
Mr Moon, counsel for Eventcepts, submitted that, in the context of a provision concerned with deemed service of postal articles after four working days, it would be extraordinary to construe the provision so that service is effected on the fourth working day even though Australia Post only delivered mail on three of those working days. Mr Moon submitted that the Court ought to adopt a purposive interpretation of working days as contained in s 160(1) for the following reasons:
(a) section 160(3) is clearly about delivery of postal articles by reference to the period of four working days which must mean, to give effect to the evident purpose of the provision, days on which Australia Post delivered mail;
(b) to construe 28 December 2016 to be a working day is manifestly unfair or unreasonable;[20]
(c) the retention of working days in preference to business day, as contained in s 29 of the AIA, evidences an intention by the legislature to adopt a more liberal calculation of time. This is because of the inclusion of the words bank holiday. The inference is clear: days other than Saturdays, Sundays and public holidays are to be excluded from the meaning of working days; and
(d) the denotation of the phrase bank holiday includes days on which Australia Post does not deliver mail, being within the connotation of the phrase at the date of enactment of s 160.
[20]See Director of Public Prosecutions v Leys (2012) 44 VR 1 at [48] per Redlich and Tate JJA and T Forest AJA.
Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) provides for a purposive interpretation to Victorian legislation:
In the interpretation of a provision of an Act or subordinate instrument –
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;[21]
[21]Section 15AA of the AIA contains a provision in very similar terms as follows:
‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.’
In Mills v Meeking,[22] Dawson J explained the effect of s 35(a) as follows:[23]
However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: [citations omitted]The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.(emphasis added)
[22](1990) 169 CLR 214.
[23]At [19].
In Statutory Interpretation in Australia,[24] the authors observe:
The second point made by Dawson J in the above extract from his judgment in Mills v Meeking is also an important one. Section 15AA [the Commonwealth Provisions] and equivalent provisions [such as s 35(a)] do not permit the courts to ignore the actual words of a statute. This was illustrated by the acknowledgement of Kirby P in several cases in the New South Wales Court of Appeal that he was bound to give effect to the clear language of a statute although in his own opinion the result was anomalous or unfair. Dawson J’s second point was also echoed in the Full Federal Court decision in R v L (1994) 49 FCR 534. In that case, Burchett, Miles and Ryan JJ commented:
The requirement of s 15AA(1) that one construction be preferred to another can having meaning only when two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature
[24]8th ed, DC Pearce and RS Geddes, Lexus Nexus Butterworths at .
The difficulty of accepting Mr Moon’s submission that a purposive approach should be taken in the way he contends is that the terms of s 160(3) are clear and are not open to more than one construction. That construction might arguably be quite unfair and unreasonable in the circumstances under consideration for the reasons that Mr Moon submits. However, as Kirby P and the Full Court of the Federal Court have pointed out, despite the fact that an interpretation is anomalous or unfair or be a construction which would amount to redrafting the provision to accord with an assumed desire of the legislature is not the correct approach. In my view, on the only construction available, 28 December 2016 was a working day within the meaning of s 160.
The next task is to consider whether ‘evidence sufficient to raise doubt about the presumption’ has been adduced within the meaning of that phrase in s 160(1). Mr Moon submitted that sufficient doubt within the meaning of s 160(1) has been raised and I agree. In my view, the fact that Australia Post did not deliver mail on one of the four working days after posting is sufficient to raise doubt about the application of the presumption contained in s 160 for the simple reason that, for the purposes of considering the practical operation of the section in the circumstances of this case, Australia Post was not delivering mail on one of the four days.
In the absence of the deeming presumption in s 160 not applying, it is then necessary to resolve the question of when, on the balance of probabilities, the demand was served.
The evidence of Ms Paglianiti is that the item had not been delivered on 23 December 2016, the first day after posting that Australia Post delivered mail. She did not visit the office to check the mail on 29 December 2016 or 30 December 2016, the second and third days after posting that Australia Post delivered mail and that the demand had been delivered by the fourth Australia Post delivery day after posting when she attended the office on 3 January 2017.
The weight of the evidence is that the envelope containing the demand would have been delivered between the second and sixth ‘”business” days’ after posting (by which expression I take to mean days that Australia Post was delivering mail) and that in the holiday period it was not uncommon for articles to take a little longer (and up to ten days) for items to be delivered.
In my view, when one has regard to the evidence as to the range of possible dates, it is more probable than not that the envelope containing the demand would have been delivered later in the range of possible days than on the earlier days, in this case on 3 January 2017, rather than 29 December 2016 or 30 December 2016.
As such, I consider that the proceeding has been commenced by Eventcepts within the time prescribed by s 459G of the Act
The omission of the page from the affidavit
I now turn to the second issue requiring consideration. Creative Talent contends that because the affidavit of Connie Marie Paglianiti dated 23 January 2017 (which was the ‘21 day affidavit’ filed in support of the application) did not include page 5 of the document which was sworn by her, it cannot properly be described as ‘an affidavit’ for the purposes of s 459G(3). This discrepancy was both with the affidavit filed with the Court and the copy of that document served on Creative Talent.
Section 459G provides:
(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2)An application may only be made within 21 days after the demand is so served.
(3)An application is made in accordance with this section only if, within those 21 days:
(a)an affidavit supporting the application is filed with the Court; and
(b)a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
In his affidavit, Mr Brett describes how the subject page came to be missing. On Friday 20 January 2017, he was contacted by Eventcepts’ principal solicitors and was instructed to arrange for swearing of the affidavit which had been drafted by them and to attend to the filing of it with Court. Because of the tragic events which had occurred in Bourke Street Melbourne over the lunch hour that day and the consequent traffic delays, Mr Brett did not see that email until he returned to his office after some considerable delay. The swearing of the affidavit was further delayed because Ms Paglianiti was also delayed in attending Mr Brett’s office. Mr Brett contacted Mr Wyatt, the solicitor for Creative Talent and asked if under the circumstances because of the gridlocked traffic in the city, he would accept service electronically of the affidavit to which with some reservation he agreed. At that point in the conversation it was contended by Mr Wyatt that the application was already out of time and should have been filed and served two days earlier.
Ms Paglianiti arrived at Mr Brett’s office about 3.45pm that afternoon and prior to her arrival he had printed the affidavit, which was 83 pages including the exhibits, together with the originating process and the other formal documentation required to be filed. He states that he did not get an opportunity to read the documents as he was dealing with clients in relation to other matters.
Ms Paglianiti then swore her affidavit and accompanying material. The documents were then scanned and collated in order to be filed electronically with the Court. It was in that process that page 5 was omitted from being scanned.
Mr Brett then filed the originating process and affidavit in support electronically with the Court. At 4.46pm, once the documents were uploaded on the Court system but still being downloaded, he sent copies electronically to Creative Talent’s solicitors and left the office at 5.15pm.
On Monday, 23 January 2017, Mr Brett went online and checked the Court computer system and discovered that at approximately 5.40pm on Friday, 20 January 2017, the documents had been rejected by the Court. This was apparently because of some deficiencies in the formatting of the documents. No substantive alterations were required to be made to the affidavit. Mr Brett made the formatting amendments to ensure the documents complied with the Rules and arranged for the affidavit in support to be sworn again and filed. Mr Brett then served the amended documents along with a copy of the filing confirmation on Creative Talent’s solicitors by email at 4.41pm and at 4.45pm. On 24 January 2017, he sent a hard copy of the documents filed with the Court to Creative Talent’s solicitors by express post.
Mr Lorbeer, counsel for Creative Talent, contended that the fact that a page was missing from the affidavit as sworn deprives the document that is filed of the character of it being an affidavit for the purpose of s 459G(3). He conceded that he had been unable to locate any authority that considered whether a document purporting to be an affidavit but missing a page is ‘an affidavit’ for the purposes of the sub-section.
Mr Lorbeer referred to the definition of ‘affidavit’ in the Encyclopaedic Australian Legal Dictionary[25] as being ‘… a written statement, made by a person who has sworn or affirmed, before a person authorised to administer the oath, that the contents of the statement are true.’ He contended that swearing or affirming the truth of a statement to be relied upon in a court is a solemn undertaking. The intention of the deponent at the time he or she takes the oath or affirmation is, he contends, sacrosanct. A document that omits a page of text that the deponent thought was before the deponent at the time of taking the oath or affirmation does not contain the ‘statement’ that the deponent intended to swear or affirm to be true. He submitted that the text and purpose of s 459G do not suggest that ‘affidavit,’ when used in that section, bears anything other than its technical meaning and there is nothing in the section that somehow reduces the solemnity of the oath or affirmation taken by a deponent of an affidavit to be filed in support of an originating process or the respect to be afforded to the intention of the deponent.
[25]LexisNexis, Encyclopaedic Australian Legal Dictionary (at 1 August 2017) 'Affidavit'.
Further, he submitted that the role and importance of a s 459G affidavit in the statutory scheme is significant as it defines (and limits) the grounds for the company’s application. It performs a role akin to a pleading, though in one sense it is more important given that other grounds cannot subsequently be raised. The centrality of the affidavit fortifies the proposition that filing a document that is incomplete on its face is not sufficient to enliven the Court’s jurisdiction. Finally, he contended, permitting the filing of an incomplete document to be sufficient to enliven the jurisdiction would be inconsistent with the structures that apply to the statutory scheme and the necessity for strict compliance with the conditions imposed on its invocation.
Mr Lorbeer referred to the decision of the Full Court of the Supreme Court of Western Australia in Robowash Pty Ltd v Robowash Finance Pty Ltd.[26] In that case, the copy of the affidavit which was served on the creditor with the originating process omitted several pages of an annexure to the affidavit. As such there was a discrepancy between the document which was filed with the Court (which was complete) and the copy which was served on the creditor. There were references in the Robowash judgment,[27] as to the requirement for service of a copy of the affidavit and its annexures. At [28] Kennedy J (with whom Wallwork J and Anderson JJ agreed) then stated:
There is no suggestion that substantial compliance with the requirement for service of a copy of the affidavit and its annexures is sufficient. Accordingly, in these circumstances, it is necessary to resolve the factual issue as to whether copies of four pages in the documents annexed to the original affidavit were omitted from the papers which were served upon the appellant by the respondent on 28 May 1999. If they were, then, in my opinion, it follows that the requirements of s 459G(2) were not complied with.
[26](2000) 158 FLR 338.
[27][23]-[28].
I am not persuaded that Robowash assists the resolution of the issue in dispute here. Here, unlike Robowash, there is no difference between the document which was filed with the Court and what was served: both were missing a page.[28]
[28]See Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299, a decision of the West Australian Full Court (Wallwork, Miller and Burchett JJ) which distinguishes Robowash in circumstances where the annexure which contained missing pages was a judgment in which the parties to the application to set aside the statutory demand were taken to have known of. This was cited as a reason to distinguish Robowash as was the Court’s view that the annexure concerned was not necessary to be annexed (see [18]-[23]).
In Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kwip Building Services Pty Ltd,[29] Santow J was considering an application to set aside a statutory demand under s 459G. In doing so, he had to consider submissions relating to alleged deficiencies in the plaintiff’s affidavit in support of the application, one of which was that the affidavit purportedly supporting the application itself annexed a copy of a second affidavit and because the second affidavit omitted one page of an annexure to it, that omission caused the affidavit to fail to meet the description in s 459G of an affidavit supporting the application or otherwise offended a mandatory requirement of s 459G. His Honour, distinguishing Robowash, observed[30] at paragraph [13]:
Clearly enough, s 459G(3)(a) makes mandatory that the affidavit supporting the application, which by definition included annexures, be filed with the Court. Equally clearly s 459G(3)(b) requires inter alia that ‘a copy of’ the supporting affidavit be served on the person who served the demand on the company. Section 459G thus mandates identity between the affidavit filed and the affidavit served. Here, there is no lack of identity established between the affidavit filed and the affidavit served, unlike Robowash.
[29](2001) NSWFC 73.
[30]Ibid at [13].
Clearly, Santow J was concerned with the issue of whether there was any difference between the document filed and the document served in resolving the issue before him. He stated[31]:
Here it is true that it might be said that the deponent Mr Bell intended to include the missing page 3. However, there is again no evidence before me to indicate that there was a discrepancy between the affidavit filed and the affidavit served as regards the missing page 3. I consider it more likely than not the documents served in these proceedings contained exactly the same omissions. No-one suggested to the contrary.
It follows then that neither omission from the affidavit renders the affidavit one which does not confirm with s 459G of the Corporations law. Accordingly, this strand in the defendant’s attack must fail. I shall leave for another day, the case of the omission which reflects only the first element, the failure to include what was intended to be included, but where the affidavit filed is identical with that served.
[31]Ibid at [16].
Mr Moon submitted that the missing material is of no substantial moment in the application and Eventcepts does not need to rely on those missing paragraphs. He contended that the document, notwithstanding the missing page is, ‘an affidavit’ and referred to Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015, more particularly o 43.01 which provides for the requirements as to form of affidavits. Order 43 states relevantly as follows:
43.01 Form of affidavit
(1) An affidavit shall be made in the first person.
(2) Unless the Court otherwise orders, an affidavit shall state—
(a)the place of residence of the deponent and the deponent's occupation or, if the deponent has none, the deponent's description; and
(b)that the deponent is a party to the proceeding or employed by a party, if such be the case.
(3)Notwithstanding paragraph (2), where a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent’s place of residence, state—
(a) the address of the deponent's place of business;
(b) the position the deponent holds; and
(c) the name of the deponent's firm or employer, if any.
(4)An affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(5)Every affidavit shall be signed by the deponent, except as provided by Rule 43.02(1), and the jurat shall be completed and signed by the person before whom it is sworn.
(6)Each page of an affidavit shall be signed by the person before whom it is sworn.
(7)The person before whom an affidavit is sworn shall legibly write, type or stamp below the person's signature in the jurat—
(a) the person's name and address; and
(b)a statement of the capacity in which the person has authority to take the affidavit.
…
43.08 Irregularity
Notwithstanding any irregularity of form an affidavit may, with the leave of the Court, be used in evidence.
Mr Moon submitted that the document filed complied with all the formal requirements of form of the Court Rules to constitute being an affidavit. It is made in the first person, it includes such matters as the place of residence of the deponent, the deponent’s occupation. All the formal requirements have been completed and signed by the person before whom it is sworn and the jurat has been completed in compliance with sub-r (7).
Mr Moon contended that, save for the paragraphs not being numbered consecutively (which arises by reason of omission of the page), the document is an affidavit within the meaning of the Court rules. Mr Moon also submitted that the requirement in s 459G is that ‘an affidavit’ needs to be filed and served not the affidavit that was sworn.
In addition, Mr Moon referred to r 43.08 which provides that the Court has the discretion, to allow with leave the use in evidence of an affidavit notwithstanding any irregularity of form. Mr Moon invoked that sub rule contending that the omission of the page was an irregularity in form.
In my view, the document which omitted page 5 which was filed and served in this proceeding is ‘an affidavit’ for the purposes of s 459G(3). It meets the formal requirements of an affidavit under the Court Rules, save for the failure to consecutively number the paragraphs. There is no doubt that if the omitted page contained vital evidence in regard to the subject of genuine dispute or off-setting claim that Eventcepts would not be able to raise matters mentioned on that page in subsequent material but that is another point.
For the foregoing reasons I consider that Eventcepts’ application has been made within time and is appropriately supported by an affidavit within the meaning of s 459G(3). The matter should return to Court for further directions to finally resolve the application.
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The explanatory memorandum for the AAIA noted there are over 200 references to business day in Commonwealth legislation and that the AIAA was a logical repository for the definition so that it would ensure it is consistently applied across Commonwealth statutes.
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