In a recent Federal Court case, it was held that electronic service is taken as effected when something is sent via email, not when it is accessed or reviewed.
The Federal Court held that there is no requirement for the recipient to consent to service via electronic communication.
In this case, Mr Gordon Ogborne was seeking a statutory demand for unpaid wages after he was laid off by his former employer Bioaction.
This statutory demand was sent via delivery of physical documents on 13 January 2022, and provided that the last day to comply was 3 February 2022.
Bioaction submitted their responding documents via email close to the end of the day on 3 February 2022. Ogborne’s solicitor confirmed receipt, but claimed that the documents did not arrive on time as she did not have instructions to accept service by email.
Ogborne attempted to argue that the PDF documents couldn’t be seen as served until the PDF was opened and readable. However, her Honour decided that service can be acehived as long as the documents arrive at the nominated address.
Furthermore, there was pre-existing email correspondence between the two parties using the relevant email addresses. Thus, it was fair to assume that anything sent to those emails would be read and received.
Ultimately, the Federal Court decided in Bioaction’s favour, and their application was deemed to have been validly served.
- All parties should be mindful of the newly expanded rules regarding electronic service of documents.
- Pre-existing email correspondence between the parties is relevant to service via email.
- Importantly, effective service does not require that there be proof that the documents were actually accessed or reviewed, only that they could have been had someone sought to do so.
- The amendments have removed the requirement for the consent of the recipient as a condition of service via electronic communication.
Case - Bioaction Pty Ltd -v- Ogborne  FCA 436 - her Honour Justice Cheeseman