This is a warning to creditors (and lawyers acting for them) who don’t have direct evidence that their bankruptcy notice was taken to the post office or post box and mailed. You will probably not have effectively served your bankruptcy notice.
Where direct evidence is lacking, the Court will not infer a bankruptcy notice was actually posted just because you had a system where mail placed in an out tray was usually or even always taken to the post office or post box. There has to be direct evidence of posting.
That is the effect of a decision of Justice Collier of the Federal Court delivered last week in Mbuzi v Favell (No 2)  FCA 311 (link).
Readers will be familiar with reg 16.01(e) of the Bankruptcy Regulations (link) from my earlier post on service by email (link). That regulation allows a creditor to serve a bankruptcy notice by post.
Justice Collier’s decision is based on three simple points:
Although personal service is no longer required, strict proof of compliance with reg 16.01(e) is necessary;
The onus is on the creditor;
The Court will not infer that a mail item was posted just because it reached an in-tray: given the penal nature of the bankruptcy system, there must be direct evidence of posting.
In Mbuzi the only evidence that the bankruptcy notice had been posted was oral evidence of the creditor as to his recollection of leaving the envelope containing the bankruptcy notice to be put in the mail by an unnamed secretary/receptionist in the ordinary course of business of his practice.
So what is sufficient direct evidence?
Notably, her Honour remarked that:
there was no evidence of a record of the notice being sent by post, as might be expected if there was a system of postage pursuant to which the bankruptcy notice was posted;
no evidence was tendered supporting the existence of any register of outgoing mail;
no evidence, either oral or in affidavit form, was given by any third party who might have physically posted the bankruptcy notice that the notice had been posted.
These remarks suggest that a system for registering outgoing mail, evidence that the notice was on the register and affidavit evidence from the person who posted the mail on the day in question, may be sufficient.
One of the first posts on this blog dealt with establishing service of documents by email, tweet or facebook message (link).
Now, service of a bankruptcy notice by email has been held to be effective. The relevant case is The Council of the New South Wales Bar Association v Archer (Federal Magistrates Court, Lloyd-Jones FM, 13 February 2012)(link).
It is surprising that an individual can be served with a bankruptcy notice by email, given that the recipient who fails to comply with the notice commits an act of bankruptcy.
The decision arises out of regulation 16.01(e) of the Bankruptcy Regulations 1996 (link) which permits a document to be “sent by facsimile transmission or another mode of electronic transmission”. The Court surveyed the authorities and found none that permitted service by email. Instead the Court relied on earlier authorities dealing with facsimile transmission.
The Court dealt with a number of issues raised by email service:
The requirement that the document be left “at the last known address of the debtor” imposed by r16.01(c) could be met when the address being used was an email address, and it did not matter that use of the email address was not tied to any fixed physical location as a street address or fax machine location might be;
If the email “bounced back” then service would not be effective;
Evidence on behalf of the debtor to the effect that he or she did not receive the document does not negate service, in the absence of the document being returned undelivered or other evidence of non-delivery: being the same rule that applies to service by post. Evidence of “non receipt” is not relevant;
The email account need not belong to the debtor provided there is evidence that the debtor checks the account. In the Archer decision, the account belonged to the debtor’s spouse and was checked about once a week by the debtor.
The decision is consistent with Austin J’s judgment in Austar Finance Group Pty Ltd v Campbell which is referred to in my earlier post, and it will be interesting to see if superior courts follow the Archer decision.