It is trite to say that the advancement in I.T. technologies are rapidly growing and encompassing every aspect of our day to day life. Cloud based technology is becoming the norm in business operations, and is now often being used to disclose documents in litigious/adversarial matters through such tools as Dropbox.
The recent Queensland Supreme Court decision in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30, illuminates that the courts (or more accurately the legislation) may not be so willing to accept the use of such technology in certain instances.
Section 11 of the Electronic Transactions (Queensland) Act 2001 (ETA), defines the requirements of an “electronic communication” for the purpose of service as follows:
(a) a communication of information in the form of data, text or images by guided or unguided electromagnetic energy; or;
(b) a communication of information in the form of sound by guided or unguided electromagnetic energy, if the sound is processed at its destination by an automated voice recognition system.
In an interesting interpretation of the above section, the Court held that due to section 11 of the ETA, the use of Dropbox was not sufficient to effect service, (in part) due to:
‘…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.’
The primary point to take from this decision/interpretation, is that one must be careful in utilising advancing technology, in not only litigation matters but in all business transactions. To avoid any uncertainty, and while the law remains behind technology, we suggest the following :
(i) Follow up electronic copies with hard copies of important documents;
(ii) Review contractual terms to specifically refer to the e-device being incorporated; and
(iii) Act with caution in respect of business sales/purchases and the terms upon which the parties agree/consent to disclose or exchange notices.
If you are in doubt, or have questions regarding this article, please do not hesitate to contact our Gold Coast law firm on 07 5563 8970 or email admin@affinitylawyers.com.au
