VIC Fencing Notice served by email - Valid?

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Trevor Mills

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6 June 2019
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Hi, my neighbour has emailed me a couple times about building a new fence. He got some quotes many months ago and emailed them to me but the conversation didnt go anywhere. Just recently he asked for my thoughts. While I initially engaged in a conversation about a fence, I did not respond to the latest communications and I certainly did not agree to anything.

Just now, a couple months after the last communication, he sent me a fencing notice by email. Is this notice valid since he served the notice by email? I thought it must be served via personally or registered post.

I live in VIC.
 

Rob Legat - SBPL

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The Fences Act prescribes that fencing notices must be given personally or by post (FENCES ACT 1968 - SECT 37 Giving notices under this Act).

However, if you acknowledge receipt of the notice in some manner it might be considered valid because you agree it has been brought to your attention (which is the relevance of service).

You might also want to consider that the previous correspondence might be used if action is taken against you. These actions don't need to be under the Fences Act - but they're apparently harder (and probably more expensive) to do that way.

Bear in mind as well that adjoining owners are generally considered liable to share the cost of a sufficient dividing fence. If either owner wants something greater (or to remove and replace what is already a sufficient dividing fence), they're notionally liable for all of that cost.
 

Trevor Mills

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6 June 2019
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Thanks for your reply... under that section of the Act you sent, it says...

2 The Electronic Transactions (Victoria) Act 2000 applies to notices given under this Act.

What does this mean?

Also, I have not acknowledged receipt, and while i initially corresponded with him via email, I had not responded to his previous couple of emails (over the period of a couple of months).
 

Rob Legat - SBPL

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That's a good question, and I saw that as well. The section is specific in that service must be in person or by post, and the Victorian government website commentary echoes that. I can't see anything that allows service by email.
 

Rod

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Service by email when initiating action is generally not allowed. Once the other party confirms a valid email address then it can be used for subsequent notices.
 

Trevor Mills

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Service by email when initiating action is generally not allowed. Once the other party confirms a valid email address then it can be used for subsequent notices.

Thanks for your reply. So, just to clarify, even though I had been informally communicating with the neighbour via email in the month before he emailed me the fencing notice, he still should have served the fencing notice (initiating the formal action) by registered post or in person?

He definitely has my postal address as that is how he first communicated with me.
 
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Rod

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Yes.

Keep in mind however, the reason for 'service' is to ensure the other party is really aware court (and tribunal) action is being taken against them so they have a chance to defend themselves. If someone is sent a notice via email and subsequently acknowledges receipt of the notice, that acknowledgement may be sufficient to attract the courts/tribunal discretionary ability to accept that service has been completed.

Generally not worth fighting over unless someone has not been served and not had a chance to adequately defend themself.
 

Scruff

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As far as I can see, it probably would be valid due to consent being implied by previous correspondence.

Electronic Transactions (Victoria) Act 2000

3 Definitions

(1) In this Act —

consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with;

10 Production of document

(1) If, by or under a law of this jurisdiction, a person is required to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document, where —

(a) having regard to all the relevant circumstances at the time the communication was sent, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and

(b) at the time the communication was sent, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and

(c) the person to whom the document is required to be produced consents to the production, by means of an electronic communication, of an electronic form of the document.
 
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Rod

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As far as I can see, it probably would be valid due to consent being implied by previous correspondence.

Not for the commencement of an action.