Monday, May 9, 2011

Service by email

Recently a lot of my briefs have included documents which are served (by way of ordinary service) by or on my instructors by way of email. The Supreme Court (General Civil Procedure) Rules 2005 (the VSC Rules) do not prescribe email as a recognised mode of ordinary service

Ordinary service under the VSC Rules is effected as follows (see Rule 6.07):
(a) by leaving the document at the proper address of the person to be served on any day on which the Prothonotary's office is open;

(b) by posting the document to the person to be served at the person's proper address;

(c) where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision;

(d) where the solicitor for a party has facilities for the reception of documents in an exchange box in a document exchange, by leaving the document in that exchange box or in another exchange box for transmission to that exchange box; or
(e) where the solicitor for a party has facilities for the reception by telephone transmission of a facsimile of a document, by telephone transmission of the document in accordance with paragraph (2.1).
So how is service by email acceptable when it is not prescribed?

Rule 6.11 of the VSC Rules allows for informal service and provides as follows:
6.11. Confirmation of informal service

Where for any reason a document has not been served in the manner required by these Rules, but the document has come to the notice of the person to be served, the document shall be taken to have been served on the day it came to the person's notice.
Even if service by email is possible under this provision, I have difficulty with the process of service by email, particularly where no response has been received to documents purportedly served by email. For instance, if a solicitor purports to serve a court document on a party by emailing it to that party's solicitor, then in order to prove that service has actually occurred, there must be evidence that it came to the 'notice of the person to be served'. That is, there must be some evidence that the item purportedly served by email:
  1. was successfully delivered to the solicitor for that party; and
  2. the solicitor for that party sent it to his or her client.
This issue was discussed by Austin J in Austar Finance v Campbell [2007] NSWSC 1493 (Austar). Austin J at [48] spelled out the problems inherent in service by email, as follows:
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).
In Austar, the New South Wales Supreme Court said that email cannot constitute service unless either (at [49]):
-it is shown that the documents electronically transmitted have actually been received in a readable form by the person to be served; or 
-the case falls within one of the special exceptions permitted by rules of court.
As such, the effectiveness of this informal service rule relies on the parties and their lawyers co-operating, which may not occur depending on what is at stake when a document is served. In my view, if a solicitor wants to serve documents by email then he or she should be taking additional precautions such as:
  1. Requesting a read receipt or confirmation by return email; and/or
  2. Calling the solicitor for the other party (or, if unrepresented, calling the other party) and confirming that the email was received; and/or
  3. If represented by a solicitor, sending the document by DX and/or by fax to the solicitor (in accordance with Rule 6.07) in addition to serving it by email; and/or
  4. If the party is unrepresented, leaving the document at the party's proper address for service or posting it to the person's proper address for service (in accordance with Rule 6.07) in addition to serving it by email; and/or
  5. If a party is a corporation, by serving the document in accordance with s109X of the Corporations Act 2001 (Cth) in addition to serving it by email.

1 comment:

  1. Moving forward, we should all adapt to the increasingly digital nature of the corporate world. A few years from now, all documents will probably be in form of e-mail.

    electronic document management