I had a case not so long ago which might have but did not turn on whether a solicitor’s evidence that he posted a letter was sufficient to prove that. The same question on much the same evidence arose in Rashed v Perpetual Trustees Victoria Ltd [2010] FCA 1046. Justice Gray did not need to decide the question, but seemed to have grave doubts about whether the evidence proved postage, saying at [6]ff (despite the numbering below):
- The affidavit material relating to service is to be found in the affidavit of Kristin Clare Watkins affirmed on 18 August 2010. She deposes to having placed the documents in what she describes as an ordinary prepaid envelope, with a covering letter addressed to the second respondent at the address contained in the solicitor’s notice of ceasing to act, which may be taken to be the last known address of the second respondent. Ms Watkins then says that she placed the envelope in the mail room of the applicant’s solicitors on 18 August 2010 at approximately 4.45 pm. She says that, in the mail room, articles are stamped and placed into an Australia Post mailbag which is collected each day by a representative of Australia Post at approximately 5.10 pm.
- This is the limit of the material, which falls short of being express evidence of actual postage. If it were necessary for the applicant to have proved effective service by post on the second respondent, then a question would arise as to the adequacy of this evidence to prove service. By O 7 r 3, in conjunction with O 7 r 4(1)(b) and (2) of the Federal Court Rules, service by post at the last known place of business or of abode of a person is permitted, in the case of a document that is not an originating process and which is not required to be served personally. This notice of motion is a notice of motion filed in the proceeding. It is therefore not an originating process. Service by post at the last known place of abode is therefore permitted by the combination of the rules to which I have referred.
- Counsel for the applicant was unable to refer me to any provision of the Evidence Act, or any authority, that would enable me to rely on the course of business in the mail room of the solicitors for the applicant, and permit me to be satisfied that the document had in fact been posted.
- In view of the fact that the second respondent’s solicitor remained on the record, and that service was also effected on him, it is unnecessary to determine whether reliance could be placed on the ordinary course of business in the mail room in order to establish postage.
