Australia: Email for the Delivery of Contractual Notices

International Best Practice in Project and Construction Agreements
Last Updated: 4 February 2013
Article by Damian McNair


It is common practice for contracts to include a clause which specifies the requirements for the delivery and receipt of contractual notices.

An example of a standard notices clause is as follows:

'Unless expressly stated otherwise in this agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this agreement must be:

  1. in writing;
  2. signed; and
  3. left at the address, sent by prepaid ordinary post, sent by fax, or given in any other way permitted by law.

They take effect from the time they are received unless a later time is specified.'

The rapid development of the use of email has led to uncertainty regarding the legal status of contractual notices sent by email. This update considers the current legal position under English, Hong Kong and Australian law in relation to email notices.


Email notices have unique limitations - both legal and technological. The uncertainty in this area and the rapid speed of technological development means there is little case law on the status of email notices. For this reason, legislation has been passed in many jurisdictions to deal specifically with the particular issues arising from notices sent by email.

The United Nations Commission on International Trade Law (UNCITL) published its Model Law on Electronic Commerce in 1996. This established a guiding set of minimalist rules, which many countries have now adapted to their needs.

The relevant legislation is the Electronic Communications Act 2000 in the United Kingdom, the Electronic Transactions Ordinance (Cap 553) 2000 in Hong Kong and the Electronic Transactions Act 1999 in Australia.

The purpose of each statute is to place electronic messages on par with other methods of communication, so that actions will not be invalidated or discriminated against merely because they were conducted electronically. Each statutory regime is facilitative, rather than restrictive.

Importantly, each of the statutes based on the guidelines of the UNCITL Model Law are 'opt-in' statutes. That is, they do not apply unless the parties agree to conduct transactions electronically. However, consent does not have to be express - it can be implied from the conduct of the parties.1


Several legal issues which arise in relation to notices sent by email are set out below.

Is email 'writing'?

For a notice to be effective under the example standard clause, it must be in writing. At common law 'writing' means any method of transcribing or reproducing the written word and may be ink, pencil or otherwise. The question of whether email falls into this category is not within the scope of this update because under the new legislation in England, Hong Kong and Australia, electronic messages are deemed to be 'writing'.2

Electronic signatures

For a notice to be effective under the example standard clause, it must also be signed. As technology is undergoing rapid change in the field of electronic signatures, and because all business needs differ, several jurisdictions adopt the minimalist approach which dictates that the reliability of the electronic signature must be appropriate given regard to the circumstances. This means that it will be up to the courts to determine on a case-bycase basis whether the signature is valid.

For example, section 7 of the UK Electronic Communications Act 2000 utilises a broad definition. It states that an electronic signature is:

'so much of anything in electronic form as -

  1. is incorporated into or otherwise logically associated with any electronic communication or electronic data; and
  2. purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.'

Australia also follows this approach, stating that an electronic signature is valid if sent by means appropriate in the circumstances, and for which the identity of the sender and their consent to the communication is verified.3 Both the English and the Australian statutory regimes leave room for businesses to utilise the technology most applicable to their needs, without placing an onerous standard for electronic signatures across the board. It is also deliberately flexible to allow room for future technological developments.

As a comparison, section 2 of Hong Kong's Electronic Transactions Ordinance is more definitive of what will constitute an electronic signature, defining them as:

'generated by the transformation of the electronic record using an asymmetric cryptosystem and a hash function such that a person having the initial untransformed electronic record and the signer's public key can determine:

  1. whether the transformation was generated using the private key that corresponds to the signer's public key; and
  2. whether the initial electronic record has been altered since the transformation was generated.'

This definition may prove to be restrictive upon a party's choice of technology in the future.

Ongoing obligations

If parties to a contract make express provision to allow for email notices, it is likely that the courts will hold them to a fairly high standard if the context of the situation and the conduct of the parties showed a reliance on this form of communication.

For example, Canadian common law has interpreted the agreement between the parties as to the method of communication strictly, holding the parties to their intention under the contract. In Kanitz v Rogers Cable Inc (2002),4 the Ontario Superior Court of Justice found that the plaintiffs had an obligation to continually check the defendant's web site (upon which the user agreement between the parties was updated from time to time), because the user agreement expressly allowed for this eventuality. Further, the court stated that parties who wish to conduct their business electronically must also bear the risks of doing so.5

Silence on the use of email

Some contracts have no provision for notices to be sent electronically. Where the contract does not expressly state that this medium is acceptable it is unlikely, in the absence of express consent, that courts would impose this upon contracting parties. However, as was noted above, consent may be implied from the conduct of the parties and the surrounding circumstances.

Technological limitations

At present, there are several technological drawbacks inherent in electronic communication which a contracting party should be aware of before it agrees to be bound by email notices, including:6

  • email address may be obtained without proof of identity
  • emails may be sent from another person's computer without their permission
  • it is not possible for the sender to ascertain with any confidence whether the recipient has read the message, even with delivery or read receipt notification
  • changes may be made to the email prior to or after receipt without detection
  • there are confidentiality concerns if access is gained to the email or to the server by an unintended party
  • unencrypted email is relatively insecure, meaning that email recipients must be wary of the identity of the sender in the absence of a digital signature.

These limitations may assist a party to deny that it had received the relevant notice. If email message confirmations are not sufficiently reliable, a party binding itself to a deemed delivery provision bears the risk that it may be taken to have received a message that it has not in fact received.

Proving email notices in court

Under the UK Civil Evidence Act 1995, electronic evidence may be admitted in court subject to proof as to the reliability of that evidence, particularly of the operation of the system used to record and store the electronic evidence. 7 This circumvents the practical difficulties of proving the contents and service of an email notice in court. Section 9 of Hong Kong's Electronic Transactions Ordinance recognises the admissibility of electronic records in Hong Kong courts. In Australia, several statutory provisions overcome the common law evidentiary rules against admitting electronic records as evidence.8

Despite these statutory provisions for admission of electronic evidence, parties may need to call experts to give evidence on the operation of their IT systems, and in particular that the data so received was adequately managed and secure.


Given the importance of contractual notices and the issues raised in this update, we recommend that as a general rule email should not be used for the delivery of contractual notices (as opposed to normal day-to-day communications).

However, this position should be reviewed on a case-by-case basis, taking into account the circumstances of the parties and the continual development in email security and reliability.


1Brogden v Metropolitan Railway Co (1877) 2 AppCas 666; Malthouse v Adelaide Milk Supply Co-operative Ltd [1922] SASR 572

2UK: s 8 Electronic Communications Act; Hong Kong: s 5 Electronic Transactions Ordinance; Australia: s 9 Electronic Transactions Act

3section 10(b) of the Electronic Transactions Act

421 BLR (3d) 104

521 BLR (3d) 104 at para [32] per Nordheimer J

6See also I Briggs and S Brumpton, 'Embrace E-construction with care!' (2001) 13(4) Aust Construction Law Bulletin 25 at 29

7Sections 8 and 9 of the Civil Evidence Act 1995. Section 8 states that copies of a document are admissible; section 9 provides that documents which form part of the records of a business are automatically admissible

8Sections 48, 69, 146, 147 of the Uniform Evidence Act (1995); Section 11 of the Electronic Transactions Act 1999

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions