Australia: You got served! Or did you? Electronic service of legal documents in question

Last Updated: 3 November 2014
Article by Kara Butler

Serving documents electronically may be practical and convenient for businesses and individuals with the prevalent cloud-based technology. But convenience comes at a cost. The Supreme Court of Queensland has held that Dropbox is not a valid means of serving legal documents, voiding an adjudication decision worth more than $100,000.

The implications of this decision extend not only to other cloud-based technology such as Apple's iCloud, Google's Google Drive and Hightail, but to other electronic methods of service such as e-mail.

Dropbox - not a valid method of service

The facts

In Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30, an engineering company, Basetec Services Pty Ltd (Basetec), served part of an adjudication application by way of e-mail. Enclosed in the e-mail was a copy of another e-mail sent by Basetec to the adjudicator stating:

"Please find attached letter, Adjudication Applications Forms as well as Dropbox links below for the two Adjudication Applications..."

below which there appeared two Dropbox links containing submissions relevant to the adjudication application.

The recipient, Conveyor & General Engineering Pty Ltd's solicitor (CGE), read the e-mail and its attachments the day it received the e-mail, however, did not open the documents contained in the Dropbox links until more than a week later, by which time it was too late to respond to the adjudication application.

The Adjudicator's decision

CGE challenged the service of the adjudication application, submitting that service was not effected by an email with Dropbox links and consequently, the adjudicator had no jurisdiction to make a decision. In making a decision in Basetec's favour, the adjudicator concluded that the adjudication application had been served effectively and on the day that the email was received by CGE.

The Supreme Court decision

On an application by CGE to set aside the adjudicator's decision, the Supreme Court held that uploading files to an electronic facility such as Dropbox, and providing a link to the Dropbox to another party by e-mail, was not sufficient.

The Court relied on the definition of 'Electronic communication' as defined in Schedule 2 to the Electronic Transactions (Queensland) Act2001 (ETA):

"a communication of information in the form of data, text or images by guided or unguided electromagnetic energy...."

In applying this definition to the Dropbox links, the Court held that:

"the material within the Dropbox was not part of an electronic communication as defined. None of the data, text or images within the documents in the Dropbox was itself electronically communicated, or in other words communicated "by guided or unguided electromagnetic energy." Rather, there was an electronic communication of the means by which other information in electronic form could be found, read and downloaded at and from the Dropbox website."

In finding the adjudicator's decision void for jurisdictional error, the Court affirmed that a document will be validly served if the efforts of the person who is required to serve the document have resulted in the recipient becoming aware of the contents of the document. The Supreme held that the CGE did not become aware of the contents of the documents until it opened the Dropbox links and downloaded the documents.

The implications to service by e-mail

Parties should also be cautious of serving documents by e-mail unless the contract in question makes express provision, as the legislation in Queensland does not stipulate for such a mode of service. Like the ETA, the Acts Interpretation Act 1954 (Qld) makes no specific reference to sending a document by e-mail. The legislation refers to "telex, facsimile or similar facility"1 as acceptable methods.

In the past, Queensland Courts have held that e-mail is a "similar facility" to telex and facsimile,2 however, the more prudent interpretation is to treat it with caution:

"For the purposes of the law of service of documents, facsimile and e-mail transmissions share the common characteristic that the hardcopy document in the hands of the sender is retained, but an electronic image of it is transmitted to a point from which it can be accessed and printed by the receiver. But there are some differences that may be significant with respect to service. In particular, a facsimile transmission is received and (usually) electronically stored in the receiver's fax machine, and is automatically printed out on paper supplied by the receiver.
On the other hand, an e-mail is transmitted to and electronically stored by a server which is normally not located in the receiver's premises, and positive action is needed on the part of the receiver to read the e-mail (by accessing it through his or her computer) and to obtain a hard copy (by directing the computer to send the e-mail to the receiver's printer)."3

In Basetec, the Supreme Court held that e-mail is not a valid method of serving documents unless it is consented to in advance, for example, by provision in the contract.

Precautions: what you should do

Parties should always make a provision in their contract permitting e-mail as a means of service.Other steps that should be taken include:

  1. obtaining consent from the other party to send by e-mail;
  2. requesting a read receipt;
  3. requesting a return e-mail;
  4. calling the other party to confirm that the e-mail was received; and
  5. sending the document by fax or to the registered address for service, in addition to the e-mail.

It is important that you keep evidence of service, such as fax transmission reports or notes of time, date and place of delivery.


1 Acts Interpretation Act 1954 (Qld), s 39.
2 Penfolds Projects Pty Ltd v SecurcorpLimited [2001] QDC 77 per Irwin DCJ at [232].
3Austar Finance v Campbell [2007] NSWSC 1493 per Austin J at [48].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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