Very few people or businesses have a fax machine. Those that do have a fax machine often do not use it.
There are many reasons why this is the case. Sending notices by fax is notoriously unreliable, inefficient and prone to human error. While for a time email had problems with non-delivery, such events occur rarely now. This makes email a far more reliable and efficient means of sending notices, and it is less prone to human error.
Notices clauses in legal documents
Most legal documents will contain a “notices” clause that sets out how notices in the document are to be served or sent to other parties. Such clauses are important because it gives certainty to how notices are delivered and ensures that there is “proof” of delivery.
Various legislation also implies notices clauses into certain types of documents in the event or to the extent that those types of documents do not contain a notices clause.
Unfortunately, I still see many documents that do not include email as a means of service or which still include fax as an option. The problem with this is that it imposes additional costs on business when sending notices by post or by fax as well as potentially requiring businesses to maintain a fax machine and fax number.
There are also delays in delivery. The post is not as widely used as it used to be prior to the electronic age. While items would normally have been posted within 2 business days, now items can take 5-7 business days to be delivered, and there are persistent calls from Australia Post to relax delivery timeframes to reduce costs.
Why then do we still refer to service by fax in documents?
Many lawyers probably take the “just in case” approach in recognition of the fact that if a fax number is not specified in the document, it cannot be served there. However, this is not always the case.
For example, the General Conditions for the Sale of Land allow notices to be served on a party or that party’s representatives at the fax number “specified as the fax number of that party or representative”.
The General Conditions then go on to say that, unless a party gives notice otherwise, any fax number included in correspondence to the other party or other representative is treated as the fax number of that party for the purposes of service.
This means that if a party or the party’s representative includes a fax number in their email signature or on their letterhead, this will likely allow the other party to serve documents at that fax number.
What is the solution?
Review your notices clauses to ensure they work for you.
If you no longer wish to pay to maintain a fax and fax number, then throw away your fax machine.
If you require a more reliable and efficient means of receiving notices, which is less prone to human error and avoids delays, then make sure email is included.
If you still need a fax machine because other organisations (such as the Magistrates Court of WA) have not yet progressed to using email, then only use it to send documents and take the fax number off your letterheads and email signatures, website and any court documents.
Let’s get rid of this antiquated technology.