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On 15 June 2020, TKM emailed Mr McCarthy. The email said, “Please find below link to correspondence and attached adjudication claim lodged with the QBCC today” and included a Dropbox link [7]. The application form was attached to the email, but TKM's submissions were available only by opening the Dropbox link [8]. Mr McCarthy said that he received the email, did not open the link, and forwarded the email to his solicitors [9]. His solicitors prepared an adjudication response and argued that the application had not been given in accordance with s 79(3) [10].

The adjudicator rejected that objection. The adjudicator reasoned that the application was attached and that the email contained a link to the submissions. The adjudicator also stated that it had been demonstrated that Mr McCarthy was in possession of the application and supporting submissions [11]. Martin J observed that the adjudicator did not explain how that possession had been demonstrated [12].

The adjudicator decided the payment claim in TKM's favour. Mr McCarthy paid the amount found to be owing [13]. He then challenged the adjudicator's jurisdiction in the Supreme Court. Martin J concluded that Mr McCarthy had not been given a copy of the adjudication application and that the adjudicator therefore lacked jurisdiction to make the decision [26]. The formal order was not set out in the reasons: the applicant was to bring in minutes of order reflecting them, and the Court would hear the parties on costs [27].

Why the court decided this way

The Court's reasoning turned on the difference between receiving a document and receiving a link that identifies where a document may be accessed. Section 79(3) requires a copy of the adjudication application to be given to the respondent [3]. Section 102 of the BIF Act permits giving a notice or document in a way provided for in the construction contract and preserves the operation of s 39 of the Acts Interpretation Act 1954 (Qld) and other laws about giving notices [4]. Section 39 provides methods including personal delivery and sending the document by post, telex, facsimile or similar facility to the individual's last known residence or business address [5].

An important preliminary point was what counted as the adjudication application. Section 79 allows the claimant to include submissions relevant to the application [3]. Martin J relied on Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd, which concerned the predecessor legislation. He treated the provisions as relevantly equivalent and applied the conclusion that, if a claimant chooses to include submissions, they form part of the application and must be given as part of it [18]. The submissions were therefore not merely optional background material for the purposes of the service question.

The application form itself was attached to TKM's email. But the submissions were not attached. They were behind the Dropbox link [8]. The form's schedule answered “yes” to the question “Are any submissions attached to the application?”, although the submissions were in a Dropbox file rather than attached to the email [14]. The evidence did not establish that Mr McCarthy had received the linked documents. The Court noted that the submissions were not produced in evidence at the hearing and that it had not been directed to a part of the adjudication response showing that Mr McCarthy's response referred to them [15].

TKM argued that an inference should be drawn from the absence of evidence from Mr McCarthy's solicitors. Martin J considered the possible Jones v Dunkel inference, but explained that even an inference that the solicitors had accessed the files would not establish that the documents had been given to Mr McCarthy in accordance with s 39 [16]. The evidence included an affidavit from a solicitor's employee who said she accessed the Dropbox link and downloaded the files on 24 July 2020, after the response had been provided. She was not cross-examined [17]. The Court did not treat possible earlier access by the solicitors as a substitute for giving the application through a method recognised by the legislation.

Martin J applied the reasoning in Basetec that actual service does not require a recipient to read a document, but does require something in the nature of receipt [22], [23]. The point was not that every electronic link is incapable of being used to give a document. Rather, on these facts, merely referring Mr McCarthy to a Dropbox link did not make him aware of the linked document's contents and did not amount to giving that material in accordance with s 39 [23]. Martin J held that Mr McCarthy had not been given the adjudication application as s 79 required [23], [26].

The Court then addressed the jurisdictional consequence. In National Management Group Pty Ltd v Biriel Industries Pty Ltd, Wilson J had considered competing views about whether service was required before an adjudication could validly proceed. Martin J noted that the majority of cases in which the issue had been decided concluded that service was required [24]. He saw no reason to depart from Biriel [25].

The statutory timetable was central to that conclusion. Martin J explained that the time for the adjudicator's decision is measured from the “response date”. That date depends on when the adjudicator receives an adjudication response or the last day on which a response could have been given. The respondent's response period, in turn, is determined partly by reference to the day the respondent receives the adjudication application [25]. If the application is not given, the relevant time does not begin to run. The adjudicator therefore lacks capacity to make a decision under that timetable [25]. The conclusion followed: because the application had not been given, the adjudicator lacked the necessary jurisdiction [26].

Before and after state of the law

The judgment described s 79(3) of the BIF Act as requiring a copy of an adjudication application to be given to the respondent [3]. It also explained the relevant methods for giving documents under s 39 of the Acts Interpretation Act, including personal delivery or sending by specified means to the individual's last known residence or business address [5]. The BIF Act's s 102 supplements rather than excludes those general provisions [4].

The decision did not treat electronic communication as categorically unsuitable. Martin J applied Basetec, which recognised that actual service can occur in electronic form, while requiring something in the nature of receipt of the document [22], [23]. The distinction drawn in this case was between electronic delivery of a document and providing a link to a separately hosted file that the recipient did not access. On the evidence, the link did not give Mr McCarthy the linked submissions [23].

The judgment also confirmed the connection between the service requirement and jurisdiction under the statutory adjudication process. It accepted that the timing scheme depends on the respondent receiving the application, and that if receipt has not occurred, the period for the adjudication process does not commence [25]. Martin J's conclusion was that the adjudicator could not make a decision where that statutory process had not started [25], [26].

The reasons do not set out a broad new rule about every form of digital file-sharing, nor do they decide what contractual provisions might establish an authorised method under s 102 in a different case. The decision's stated result rests on the evidence about this email and Dropbox link, and on the statutory service provisions considered by the Court.

Key passages with plain-English translation

At [14], Martin J observed that the application form did not set out the claim in detail and that TKM had answered “yes” to whether submissions were attached, even though the submissions were in a Dropbox file. In plain English, the form and the supporting material were distinct components, and the method used to supply the supporting material mattered.

At [16], the Court considered the suggested inference arising from the absence of evidence from the solicitors. Martin J said that even if the solicitors had accessed the files, that would not resolve whether the documents had been given in a way that complied with s 39. The practical point is that possible knowledge or access by a recipient's representatives does not automatically prove that the statutory method of giving a document was satisfied.

At [18], Martin J applied Basetec on the status of submissions. Where the claimant chooses to include relevant submissions, they form part of the adjudication application and must be given as part of it. In plain English, the claimant cannot treat included submissions as irrelevant to the service requirement simply because the statutory form is also sent.

At [23], Martin J said: “Mr McCarthy did not become aware of the contents of the document merely by being referred to a link to a Dropbox file.” The Court was addressing the facts before it: Mr McCarthy said he did not open the link, and the evidence did not show that the application material had been given by another method satisfying s 39. The judgment does not say that a recipient must actually read every properly delivered document. Rather, [22] recognises that actual service does not require reading, but does require something in the nature of receipt.

At [25], Martin J explained that if the respondent is not given the application, the adjudication timetable does not start. In plain English, service is not just a procedural formality in this statutory scheme: it is connected to when the respondent's opportunity to respond begins and when the adjudicator's decision period can run.

At [26], the Court stated its conclusion directly: Mr McCarthy was not given a copy of the application, so the adjudicator did not have the necessary jurisdiction to make the decision. That conclusion concerns the adjudicator's authority to decide the application, not the substantive merits of the payment claim.

What fact patterns trigger this precedent

The decision is most directly relevant to a situation where a claimant sends an adjudication application by email, attaches some but not all of the material said to form part of the application, and provides the rest through a link to a file-hosting service. In McCarthy, the application form was attached but the submissions were available only through Dropbox [8]. The respondent said he did not open the link [9].

The reasoning also matters where the claimant has included submissions as part of the application. Under the approach adopted at [18], those submissions form part of the application and must be given with it. If a document is behind a link, the key factual questions include whether the recipient received the linked document itself, whether it was sent by a method permitted by the governing legislation or contract, and what the evidence shows about access and timing [16], [17], [23].

The jurisdiction analysis becomes relevant where the alleged failure to give the application affects the date on which the respondent's response period starts. Martin J tied the response date and the adjudicator's decision period to receipt of the application [25]. The decision therefore concerns more than a dispute about whether a recipient happened to read a document: it addresses whether the statutory preconditions and timetable were engaged.

The decision does not determine every possible case involving cloud storage or electronic transmission. Section 102 recognises that a construction contract may provide for service by email [4]. A different contract, a different delivery method, or evidence that the linked documents were actually delivered or received could raise issues not decided on these facts. The reasons should be read with their particular evidentiary record in mind.

How later courts have treated it

The supplied judgment contains no account of decisions delivered after 7 October 2020 and does not describe any later court's treatment of McCarthy. It would therefore be unsupported, on this source alone, to say whether later courts followed, distinguished, or limited the decision.

The precedent relationships Martin J did discuss concerned authorities predating McCarthy. He applied Basetec to the status and service of submissions forming part of an adjudication application [18], [23]. He also applied Biriel to the jurisdictional consequence of failure to give the application, stating that there was no reason to depart from that decision [24], [25]. Jones v Dunkel was cited in considering the proposed inference from the absence of evidence from Mr McCarthy's solicitors [16]. Chase Oyster Bar and Niclin Constructions were referred to as examples of cases supporting the proposition that service was required before an adjudication could validly be undertaken [24] and footnote 6.

Accordingly, the judgment supports a description of how Martin J used earlier authorities, but not a history of later treatment. Any claim about subsequent consideration would require later judgments not included in the supplied material.

Still-open questions

The reasons do not resolve what contractual wording or technical process would be sufficient under s 102 to give an adjudication application through a cloud-based service. Section 102 allows a document to be given in a way provided under the relevant construction contract, and the judgment gives email service as an example of a contractual method [4]. The facts do not establish that the contract provided for Dropbox links or otherwise specified a method for linked files.

The decision also does not set out a general test for when sending a link is itself sufficient to amount to giving a document. Martin J's conclusion was that Mr McCarthy had not become aware of the linked document merely because the email referred him to a Dropbox link, and that service had to comply with s 39 [23]. The judgment's reliance on Basetec recognises electronic service where there is something in the nature of receipt [22]. The precise application of that concept to other platforms or evidence of delivery is not addressed.

There are also evidentiary questions left dependent on the circumstances of any later dispute. In McCarthy, the adjudication submissions were not provided in evidence at the hearing [15]. The evidence about the solicitor's later download was that it occurred on 24 July 2020, after the response had been provided [17]. The Court considered but rejected the suggestion that an inference of possible earlier access could establish compliant service [16]. The reasons do not establish what evidence would be sufficient in a different case to prove receipt, timing, or the content of linked files.

Finally, the judgment does not determine the substantive payment dispute. Mr McCarthy had paid the amount determined by the adjudicator [13], but the proceeding addressed the adjudicator's jurisdiction, not whether the payment claim was substantively correct. The formal consequences of the Court's conclusion were to be expressed in minutes of order, with costs to be addressed separately [27].

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.