Electronic Service of Documents

In recent times, electronic signing of many kinds of documents has become increasingly common. Indeed, in the midst of the Covid-19 pandemic, we saw legislative amendment in South Australia that enabled the signing of affidavits, for example, to be remotely witnessed by audio-visual link. This was a significant change from what traditionally could only be done in person.

Some documents issued by a council in the ordinary course of business may be issued electronically. Subject to any service requirements in the particular Act or other legislative instrument pursuant to which the document is to be served, provision is made for electronic service of documents in the Electronic Communications Act 2000 (EC Act) and the Legislation Interpretation Act 2021 (Interpretation Act).

Section 7 of the EC Act provides for the validity of government documents issued wholly or partly by means of one or more electronic communications. Documents issued by a council are government documents for the purposes of this section. In addition, Section 51 of the Interpretation Act provides for electronic service of documents in a manner designated, or agreed to, by an individual or body corporate. In some cases this may allow for service of documents by email to an email address with which the individual or body corporate has previously communicated with the Council.

However, where an Act or other legislative instrument provides for specific methods of service, these must be utilised. For example it will generally be the case that rate notices cannot be served electronically unless the ratepayer has agreed to receive rate notices electronically. Further the rules relating to entering into contracts and completing other transactions are different and can be complex.

An example of where it may be appropriate to serve a document electronically pursuant to the EC Act and Interpretation Act is where a council is required to serve a notice on the registered owner of a vehicle prior to commencing prosecution proceedings under the Road Traffic Act 1961 (RT Act). Section 174A of the RT Act provides that a council must, in certain circumstances and before commencing proceedings against the registered owner of a vehicle for an offence (typically a breach of Part 12 of the Australian Road Rules) send the registered owner of the relevant vehicle a notice inviting them to nominate the driver or, in the case of transfer of the vehicle, the vehicle’s new owner. The RT Act does not provide for specific methods of service. Where a council has previously corresponded with the owner of the vehicle via email, it may be open to the council to send such a notice to the owner via email as an alternate to sending it via post. This option would need to be assessed on a case by case basis.

When considering service of documents in the ordinary course of business, we consider it is worth taking the time to determine whether the document may be served electronically as an alternate to sending it via post.

For more specific information on any of the material contained in this article please contact Felice D’Agostino on 8210 1202 or email fdagostino@normans.com.au or Paul Kelly on 8210 1248 or email pkelly@normans.com.au