The recent decision of Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor  QSC 30 in Queensland has held that the popular cloud sharing website Dropbox is not a valid means of serving legal documents.
This is a challenge to an adjudication decision made by the second respondent under the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”), whereby the applicant (“CGE”) was required to pay to the first respondent (“Basetec”) the sum of $121,472.02.
In essence, CGE says that the adjudication application was not duly served upon it, so that the adjudicator had no jurisdiction.
On 23 August 2013, Ms Forsyth from Basetec sent an email to Ms Scott of Porter Davies which attached three documents, being the two adjudication applications and a letter to the Institute of Arbitrators and Mediators Australia. But within the email itself was also a copy of the email which Ms Forsyth had sent to the Institute on that day. That email to the Institute began:
“Please find attached letter, Adjudication Application Forms as well as Dropbox links below for the two Adjudication Applications …”
below which there appeared two Dropbox links.
According to the undisputed evidence, on 23 August Ms Scott read the email and its attachments but did not seek to look at the documents which were within those Dropbox files.
On Monday, 26 August 2013, Ms Forsyth sent to Mr How of CGE an email which was relevantly identical to that which had been sent to Ms Scott on 23 August. Again the Dropbox links were specified in the copy of the email which had been sent to the Institute. According to the undisputed evidence of Mr How, on 26 August he read only the email to him and the attachments and did not seek to look at the documents which were within the Dropbox files.
Neither Mr How nor Ms Scott became aware of the contents of the Dropbox files until Monday, 2 September 2013. The Dropbox file for the Condabri application contained, amongst other things, Basetec’s submissions to the adjudicator and some documentation which was described as “evidence of contract”. But the submissions for CGE do not identify any part of that material which it could not have anticipated.
It was that use of the Dropbox facility which gives rise to the controversy as to whether, by either of those emails, Basetec duly served the adjudication application. The Dropbox facility 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 important point here is that the file within the Dropbox was not part of the data which was contained in the email and its attachments.
The adjudicator concluded that the adjudication application had been served by the email sent to Porter Davies on 23 August. He had advised the parties of his acceptance of the adjudication application on 28 August. Therefore the deadline for an adjudication response, according to s 24(1) of BCIPA, he held was 30 August 2013.
No document which purported to be an adjudication response was provided until 2 September 2013. On that day, Ms Forsyth sent an email, which had been copied to the adjudicator and to Ms Scott, which contained submissions about the service of the adjudication application. Ms Scott sent to the adjudicator and Ms Forsyth a submission in response on the service question, before receiving a further submission (by email) from Ms Forsyth on that question. The adjudicator considered all of these submissions.
Again on 2 September, Ms Scott emailed to the adjudicator and Ms Forsyth an adjudication response which included submissions and a statutory declaration by Mr How on the substantial question. But the adjudicator determined that he was precluded from considering any submission from CGE which was received after 30 August, except on the service question.
The parties exchanged further submissions on the service question on 3 September before the adjudicator delivered his decision on 10 September 2013.
The essential complaint of CGE is that is was denied the opportunity to provide an adjudication response because the adjudicator erred in concluding that the time for that response started running on 23 August, being the date on which, the adjudicator concluded, Basetec’s application was served.
It will be declared that the decision of the second respondent, dated 10 September 2013 from an adjudication between the applicant and the first respondent is of no effect.