In the recent case of Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd & Another  QSC 30, the Queensland Supreme Court considered how documents may be served electronically. The Court held that the use of a ‘Dropbox’ facility did not constitute valid service, at least until the recipient downloaded the document from the third party site. This may be some time later than when the email itself was received.
The case highlights the following:
- If parties wish to use a particular method of communication for the service of documents, that should be set out in the contract.
- Service of documents requires the recipient to actually receive a copy of the document. Whilst email may be acceptable, the actual documents should be attached to the email, such that they are delivered to the recipient’s inbox. The provision of an electronic link directing the recipient to a third party host site is likely to be insufficient.
This case is important in light of Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2]  WASC 161, which leaves the question open in Western Australia.
Basetec (the contractor) and CGE (the principal) were party to a contract for supply of pre-assembled pipe rack units for water treatment facilities. A dispute arose as to payment, and Basetec delivered a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA), claiming AUD403,680.20. In its response, CGE disputed the entirety of the claim.
On 23 August 2013, Basetec made an adjudication application for the payment claim. Ms Forsyth from Basetec sent an email to Ms Scott of Porter Davies (CGE’s lawyers). That email included the following sentence:
Please find attached letter, Adjudication Application Forms as well as Dropbox links below for the two Adjudication Applications …
‘Dropbox’ is a file hosting or cloud service, which allows electronic files to be stored remotely by a third party. This means that any computer can view the file. Importantly, the files stored in Dropbox, which can be accessed via a link, are not part of the data contained in the email itself.
On 23 August, Ms Scott read the email and its attachments, but did not access the documents within those Dropbox files. Ms Scott did not become aware of the contents of the Dropbox files until Monday, 2 September 2013.
The question before the Court was whether Basetec had duly served the adjudication application.
McMurdo J held that it had not.
In reaching this decision, McMurdo J considered the relevant statutory framework in Qld which covered service of documents by email. Ultimately, however, the primary reason for the decision was that the relevant documents were not part of the communication received by CGE. Rather, those documents were retained on an external, third party hosting website. Although the emails themselves were read on the day they were sent, the relevant documentation was not within the email.
McMurdo J held that service must involve something which could be described as the sending of the entire application to a relevant office of CGE. Actual service did not require the recipient to read the document, but it did require actual receipt of the document. Whilst a document may be served by email, the entire document must be ‘delivered’ to the recipient (for example, by way of an attachment to an email). It is insufficient for the email to merely direct the recipient as to where the documents may be found. To take an analogous example, a physical document must be actually posted to or left at a location to be served – it is insufficient to leave a notice advising the recipient where the document may be found. This case is important in light of Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2]  WASC 161. In that case, the adjudicator received 44 emails attaching ‘.rar’ files (a common compression utility) that he could not open. He then received the same files via a ‘Yousendit’ link (which similar to dropbox), but considered these materials were not ‘attached’ to an email. Accordingly, the adjudicator determined the matter without regard to those materials. Although Heenan J thought that the decision that no attachments were served might be wrong, he considered it was not a jurisdictional error that could be challenged, and accordingly did not fully decide the issue.