VIC Fencing Notice served by email - Valid?

Discussion in 'Property Law Forum' started by Trevor Mills, 6 June 2019.

  1. Scruff

    Scruff Well-Known Member

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    I disagree. The Electronic Transactions (Victoria) Act 2000 applies to all VIC legislation and there are currently only 2 exemptions listed in the regulations:

    Electronic Transactions (Victoria) Regulations 2010

    6 Exemption for wills, codicils and other testamentary instruments (not relevant in this case), and

    7 Exemption for personal service requirements
    (1) Section 7(1) of the Act does not apply to any transaction (being the delivery of information or a document) required to be effected only by personal service.
    (2) Division 2 of Part 2 of the Act does not apply to a requirement that information or a document be delivered only by personal service.

    (s10 of the Act is in Division 2 of Part 2.)
    The exemption at s7 does not apply in this case because the requirement to serve in person is not exclusive - s37 of the Fences Act also allows service by post, to which the exemption does not apply.

    Therefore the only issue is with consent under s10(1)(c) of the Electronic Transactions Act. The OP has indicated that communication has been by email and verbal. The problem is that it appears he never asked the other party to stop communicating by email. Since he received emails and then responded to them, either by email himself or verbally, consent to receive the notice by email is implied by his own actions, thus the requirements for s10(1)(c) have been met. If he asked the other party not to send any more emails, but to instead come and see him personally, then that would be another matter.

    My bet is that if the OP challenges the validity of the notice at VCAT, the member will ask "Did you ask them to stop emailing you?" If the OP says "No", then VCAT will rule that the notice was properly served. You also need to remember that these Tribunals serve "quick" justice - and if VCAT is anything like NCAT in NSW, they are not going to waste time by forcing someone to serve the notice again in these circumstances.

    In short, almost anything that can be served by post can be served by email if there is consent from the other party to receive it that way - and the Electronic Transactions Act specifically allows for consent to be inferred from the recipient's own actions.
     
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  2. Rod

    Rod Lawyer
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    Nope.

    Agree that s.7 of the Regs are not relevant.

    Issue with s.10(1)(c) of the Fences Act is that you are now inferring consent based on past behaviour. You cannot infer consent for the commencement of action - in theory.

    Now as to whether a tribunal will accept 'inferred consent' is a different story. I don't know, but have already suggested it may, especially if the served party says something about receiving the notice via email.
     
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  3. Scruff

    Scruff Well-Known Member

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    I'll explain my thinking because I'm always interested in interpretation - oddly enough, I find this technical stuff interesting.

    "FA" and "FR" means "Fences Act 1968" and "Fences Regulations 2014" respectively.
    "ETA" and "ETR" means "Electronic Transactions Act 2000" and "Electronic Transactions Regulations 2010" respectively.

    1. S37 of the FA applies to all notices served under the FA. There are no exclusions in the FR (which only deals with prescribed forms), therefore s37 includes notices to commence an action.

    2. Note #2 in s37(1) states that the ETA applies to notices served under the FA. Notes don't form part of the legislation, but can be used to interpret it. As s37 applies to all notices served under the FA, the fact that the note appears in s37 makes it clear that all notices served under the FA can be served electronically.

    3. The exclusions in s6 as s7 of the ETR are not applicable, therefore the ETA applies to notices served under the FA without restriction.

    4. S10(1) of the ETA allows documents or information normally produced to another person by way of a physical document to be produced electronically.

    5. S10(1)(c) requires that for a document or information to be produced electronically, the recipient must consent to receiving the document or information in that form.

    6. The definition of "consent" in s3 of the ETA allows for consent to be "inferred from the conduct of the person concerned", which in this case is the OP.

    7. Assumed from the info provided by the OP, it appears that: the other party communicated mostly by email; the OP responded mostly verbally; the OP did not inform the other party that he prefer they don't communicate by email.

    8. If #7 is correct, consent needs to be determined in regard to the OP receiving communications from the other party by email. (The method used by the OP to respond to those communications is not relevant.)

    9. If #7 is correct, the other party may reasonably infer from the OP's actions that the OP consents to receiving communications by email and therefore consents to receiving the notice by email.

    So the whole issue revolves around consent and the OP not advising the other party to contact him by other means when the other party was mostly using email. So based on the info provided, I believe that the notice was properly served and that VCAT would rule that way. It all depends on the assumptions at #7 being correct.

    Lastly, I don't see any restrictions anywhere regarding the type of notice / document / information. Without that, any notice that can be served under the FA can be served electronically in compliance with the ETA, including any notice relating to commencing an action.
     
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  4. Rod

    Rod Lawyer
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    #6 and #9 are your issue.

    Consent to correspond for one type of activity is not to be inferred for all activities. For instance, I use email for all sorts of correspondence and disputes, however there is no way I'd want legal action initiated against me except via post or personal delivery. Too many scams going on these days to trust notices sent via email.

    While I do know of at least one exception to the use of emails for first notices, it is followed up with phone calls as confirmation. I'm not going to broadcast which organisation - I don't want scammers using that as well.

    Inferred consent - includes consent that can reasonably be inferred from the conduct of the person concerned....

    Just because a person is willing to correspond via email over a fence, it is not safe to assume they are willing to correspond via email for the purposes of legal action. Inferring consent from one purpose to another is not sound and likely unreasonable.

    A court generally needs to know a party is aware legal action is being taken before making a ruling.
     
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  5. Rob Legat - SBPL

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    I agree with Rod. You can’t infer consent to receiving service of legal process just from consent (actual or implied) to receiving electronic communication generally. Section 10(1)(c) of the Electronic Transactions Act talks about consent to receive an electronic form of a document required to be produced - specifically, not just electronic communication generally.

    To give you a practical example, Federal government agencies I deal with freely communicate by electronic means. However, when they need to serve something they always ask if they have the recipient’s permission to provide the document by electronic means; and in every instance. This is in the context of service on a company where personal service is not necessary.
     
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  6. Scruff

    Scruff Well-Known Member

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    Thanks guys, I'll accept that. Always happy to learn - that's what makes life so interesting.

    So back to the OP's question,
    I guess everyone agrees the answer is "no" then.
     
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