In a setback for cloud communication and the convenience of web users, a court has ruled that a web service embraced by business and professionals for sending large electronic files to colleagues – as well as adversaries – is not a valid means of serving legal documents.

The Supreme Court of Queensland ruled that an email sent by an engineering contractor asking its opponent in a $270k construction dispute to “Please find attached letter, as well as Dropbox links below for the two Dispute Applications” did not constitute valid service of the documents accessible via the links.

While the recipient – a Brisbane lawyer – read the email relating to the supply of components for water treatment facilities at a LNG workers camp near Miles in Queensland’s west, she didn’t open the Dropbox links until about a week later.

The sender couldn’t convince the court that the lawyer’s receipt of the email alerting her to the linked documents meant that the linked documents were received at the same time.

Because Dropbox is a service “by which an electronic file is stored by a third party remotely so that any computer (with the relevant authority) can view the file,” the link received was not the electronic version of the document and therefore receipt of the link was not the equivalent of receipt of the documents themselves.

Thus even though Dropbox “is indisputably practical and convenient” for parties to convey and get access to electronic files, it does not amount to “sending” documents.

Not even Queensland’s Electronic Transactions Act which facilitates the use of electronic communication by treating it the same as its written counterpart – provided the other party consents – could assist the sender’s argument.

That’s because the ETA, that came into law as long ago as 2001, specifically defines “electronic communication to be that of “information in the form of data, text or images by guided or unguided electromagnetic energy”.None of the data, text or images within the documents in the Dropbox links was itself electronically communicated “by guided or unguided electromagnetic energy” or  for that matter, by any other means.

Likewise the state’s Acts Interpretation Act only contemplates contraptions as new fangled as telex machines and doesn’t even enable email as a means of delivery.

The only way such service would have been valid is if a) the sender could have proved the lawyer had actually opened the Dropbox links to ‘receive’ the items; or b) the parties had agreed in their original transaction documents that “receipt of a Dropbox link by email will be deemed to be receipt of the document accessible by such link and any document requiring personal service may also be served by such means.”

The same issue applies equally to other cloud link services such as Google Drive or Microsoft’s Sky Drive.

Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 030 Philip McMurdo J 07/03/2014

 


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