- 22 -
that they will be told whether an offer has been accepted. The various versions of the SSA contained cl 1 which provided that the SSA (offer) takes effect "as soon as you indicate your acceptance of these terms".
79 The conclusion that the contract was formed where electronic communication is received is consistent with, and (importantly for the principle of coherence) provides coherence with, the provisions in Australian legislation concerning electronic transactions, based upon the United Nations Commission on International Trade Law, UNCITRAL Model Law on Electronic Commerce 1996 with additional article 5 bis as adopted in 1998 (adopted 12 June 1996, United Nations), which provides for the place of receipt of electronic communications which is generally where the addressee has its place of business: Electronic Transactions Act 1999 (Cth) s 14B; Electronic Transactions Act 2000 (NSW) s 13B; Electronic Transactions (Victoria) Act 2000 (Vic) s 13B; Electronic Transactions Act 2000 (SA) s 13B; Electronic Transactions Act 2000 (Tas) s 11B; Electronic Transactions Act (Queensland) 2001 (Qld) s 25(1)(b); Electronic Transactions Act 2001 (ACT) s 13B; Electronic Transactions Act 2001 (NT) s 13B; Electronic Transactions Act 2011 (WA) s 15.
80 However, this conclusion that the SSA became binding at the place of receipt of acceptance says nothing about questions concerning whether, and when, electronic (and usually near-instantaneous) communication is received and the timing of such receipt: see Christensen S, "Formation of Contracts by Email – Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. See also see Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) [2009] FCA 522; (2009) 255 ALR 632, 642 [25] (Logan J).
81 Although I would, if necessary, conclude that Washington State is the place where the contract was formed, this factor has very little weight. In Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50, 62, Lord Diplock remarked that the place of contracting was of little weight in an age of modern telecommunications. In Nygh's Conflict of Laws the authors remark that this proposition is even more pronounced four decades later: Davies M, Bell AS and Brereton P, Nygh's Conflict of Laws in Australia (9th ed, LexisNexis Butterworths, 2014) 454 [19.33]. In particular, in Fleming v Marshall [2011] NSWCA 86; (2011) 279 ALR 737, 751 [64], Macfarlan JA said that in general in the case of a transactional contract "the place of contracting will only be of real significance where a
