In an interesting decision of the Supreme Court delivered on 7 March 2017, Justice Hammerschlag found that delivery of a USB stick containing an adjudication application on a respondent was not enough to meet the service requirements in the Building and Construction Security of Payments Act (SOPA).
Section 17(3)(a) of the SOPA requires that an adjudication application be in writing.
Section 21 of the Acts Interpretation Act defines “writing” to include “printing, photography, lithography, typewriting, and any other mode of representing or reproducing words in visible form”.
The Applicant delivered a USB stick containing the application documents to the Respondent’s address on the due date. The application documents comprised four lever arch folders and followed in the mail two days later.
The Court found that the delivery of the USB stick is not the same thing as service of the writing that is stored on the USB stick.
The Court found that the USB stick “does not represent or reproduce words in visible form in the way that s21 of the Interpretation Act has in mind. Looking at it, one sees only a small piece of plastic, perhaps with some circuitry on it. It is a device which, if actioned, is capable of representing or reproducing what is stored on it in visible form.”
The additional step required by the recipient to access the “writing” on the USB drive cannot be assumed.
Beware – we have apparently not reached a point where delivery of written material in this way is good enough!
If you are dealing with applications where time is absolutely critical, like the SOPA or statutory demand cases, old school paper delivery is still the only way to go.