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Jurassic jurisprudence

Some 66 million years ago, a meteor slammed into the Earth, wiping out the non-avian dinosaurs and paving the way for tiny mammals to fill the void left by the decline of the reptiles.

Those mammals would evolve into humans, who would go on to develop laws and in doing so create a few dinosaurs of their own.

COVID-19 wasn’t exactly a meteor, but its impact on the legal landscape is similar to what happened with the dinosaurs. The legal profession was largely forced online and, just as our ancestors evolved to fit a new ecological niche, our profession has evolved to suit the new reality.

That doesn’t mean we don’t still have a few dinosaurs in the profession, nor that there aren’t some archaic practices that need reforming, and a recent case shows that this incudes legislative reform.

McCarthy v TKM Builders Pty Ltd [2020] QSC 301 considered the question of whether or not documents had been effectively served via sending an email with a link to a Dropbox file, and decided that such service was not effective (read our casenote). This isn’t surprising, as the legislation being interpreted predated the release of Dropbox by six years.

In one sense, the drafters of legislation such as the Electronic Transactions (Queensland) Act 2001 and the Commonwealth Electronic Transactions Act 1999 are to be congratulated. Despite being passed long before most of the technology they regulate was developed, the Acts perform remarkably well. As the McCarthy case shows, however, there are situations which they cannot accommodate.

This led to a somewhat bizarre result in that Mr McCarthy received the email with the link, and forwarded it to his solicitors, but never accessed the documents and thus avoided being served. This is akin to receiving documents via traditional means but avoiding service by refusing to open the envelope.

The effect is that firms are spending a fortune printing several copies of large documents to comply with laws that were written before smartphones, tablets, and file-hosting services (not to mention technology such as blockchain and machine learning). The result is huge files that will eventually be stored for seven years and then shredded, an almost criminal waste of time and resources.

Now that just about the entire world has been dragged into the digital realm, it would seem timely to conduct serious legislative reform in the electronic transactions space.

Queensland Law Society has called on parties in this year’s state election to commit to upgrading court technology, and that will of necessity involve revisiting the legislation which regulates the online world. This constitutes an opportunity to undertake genuine reform of the laws which underpin our digital economy – it should not be missed.

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