Service by way of DropBox
The Queensland Supreme Court case of Conveyor & General Engineering v Basetec  QCS 30, demonstrates the risks of relying on cloud technology to serve documents.
In this case Basetec had initiated proceedings by serving an adjudication application, by emailing CGE’s solicitor several attachments and DropBox links.
The DropBox links directed the recipient to two files, which contained Basetec’s written submission and supporting documentation.
Although the email was read, CGE did not become aware of the contents of the DropBox files until after the deadline for the adjudication response.
While CGE provided submissions, the adjudicator determined that he was precluded from considering any submissions which were received after the response deadline.
CGE claimed it was denied an opportunity to provide an adjudication response because the adjudicator erred in concluding that the time for the response started on the date which, the adjudicator concluded, the application was served.
In determining whether Basetec’s emails could constitute valid service, the Court considered section 11 of the Electronic Transactions (Queensland) Act 2001 (ETA).
The Court held this section did not authorise the service of the application, inclusive of the material within the DropBox and did not constitute electronic communication within the definition of the ETA.
The Court considered only part of the application was ever sent and Basetec merely explained where the balance of documents was.
It seems that even if the documents had been downloaded and read by CGE, service may still have been considered invalid, as the method of service was not expressly authorised by the contract.
The case turned on the question of when the application was served on CGE for the purposes of section 103 of the Building and Construction Industry Payments Act 2004 (“BCIPA”).
The Court reasoned that although the parties had used DropBox in earlier correspondence, the relevant contract between the parties did not make provision for the service of documents by way of DropBox and therefore the application had not been served properly.
The Court agreed with previous cases that service was effective when “the efforts of a person required to serve the document have resulted in the person to be served becoming aware of the contents of the document”.
The Court considered the adjudicator had erred in his conclusion that CGE was out of time and the date of service was actually when CGE accessed the DropBox folder.
In this case, the Court considered that service via DropBox was ineffective, resulting in an entire adjudication process being set aside.
In light of this decision it seems service will generally be deemed valid if there is proof that the recipient actually received the entire notice, and in that case the date of service will be the date the documents were actually received and read, not the date they were sent.
If you have any queries regarding service of documents, Building and Construction Industry Payments Act 2004 matters including adjudications, or litigation generally please contact our office, McLaughlins Lawyers. We are Gold Coast lawyers with a litigation law team with expertise in Building and Construction Law who you can contact directly in order to discuss these issues.