Electronic Transactions Act (2008): Validity of Electronic Communications in Legal Proceedings

Introduction

COVID-19 has seen many restrictions put in place with businesses, which aim to limit face to face contact. The Fiji Government is also trying to promote its digital services during the pandemic. Despite this, filing court documents is still done physically at the respective Court Registries in Fiji.

However, the recent case Island Buses Limited v Land Transport Authority – HBA 31 of 2020[1] has confirmed the effectiveness of electronic communications and may have arguably expanded the law to recognize electronic communications as an effective method of filing documents under the Electronic Transactions Act (2008) (ETA).

Background

Island Buses Limited filed an appeal in the Land Transport Appeals Tribunal (“LTA Tribunal”). A Notice of Appeal was prepared for filing, however when filing was attempted, the LTA Tribunal Registry was closed and upon further enquiry, the Secretary for the said the regsitra was working at a different location on that day and the registry was closed. The Notice of Appeal was then forwarded by email to the Secretary of the LTA Tribunal Registry on that same day - within the appeal period.

LTA Tribunal

The Notice of Appeal was “accepted” for filing by the Secretary of the LTA Tribunal Registry five days later and a hard copy of the Notice of Appeal was subsequently physically filed. An interested party then successfully applied to have the Notice of Appeal struck out on the ground that it was “filed” out of time.

Appeal to the High Court

LTA Tribunal’s decision to strike out the Notice of Appeal was then appealed to the High Court of Fiji. The High Court was asked to consider the effectiveness of the email as a means of filing the Notice of Appeal with the LTA Tribunal Registry.

In the appeal, His Lordship Justice Amaratunga cited section 2 of the ETA which states that one of the objectives of the ETA is:

“to recognize the validity of and promote the development of electronic communications in commercial and non-commercial dealings and in dealings with governmental entities”[2]

His Lordship Justice Amaratunga went on to state that Fiji government entities are obliged to recognize the validity of electronic communications. Justice Amaratunga stressed the applicability and validity of electronic communications. Justice Amaratunga also highlighted section 5 of the ETA which states:

“Validity of Electronic Transactions

5. A data message, electronic document, electronic record or other communication must not be denied legal recognition, effect, validity, or enforceability on the ground that it is in electronic form”.

The ETA is often used to give effect to commercial transactions, through recognizing the ability of parties to execute documents electronically, however it has seldom been relied upon to recognize filing court or tribunal documents.

Unlike many other countries which have moved to an online digital court registry for filing of documents, documents still need to be physically filed in Fiji, which can be problematic, particularly as Fiji battles COVID-19.

However through recognizing the effectiveness of electronic communications under the ETA, the Island Buses Limited v Land Transport Authority – HBA 31 of 2020, decision may have arguably ‘opened the door’ for parties to initiate proceedings electronically, which is welcome in a time where we now, more so than ever, need to promote and encourage digital communications and government e-services.

Haniff Tuitoga was pleased to have represented Island Buses Limited in this seminal case.

[1] Island Buses Ltd v Land Transport Authority [2021] FJHC 163, http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2021/163.html?stem=&synonyms=&query=%22electronic%20transactions%20act%22 [2] Electronic Transactions Act, https://www.laws.gov.fj/Acts/DisplayAct/1036#