- Two decisions have prompted doubts amongst practitioners about electronic signatures.
- Electronic signatures are not necessarily less reliable than ink on paper, but the risks do differ. With appropriate care, electronic signatures can be more reliable.
The September 2016 decision of the Court of Appeal in Williams Group Australia Ltd v Crocker  NSWCA 265 prompted doubts electronic signatures are enforceable or binding. A decision in In re Stanley Mayfield (unreported, United States Bankruptcy Court, E.D. California, Bardwil J, 15 July 2016 (‘Mayfield’), sanctioning a lawyer for submitting Court documents signed using DocuSign, without a paper document existing, raised similar concerns. While those doubts are unwarranted, practitioners need to account for the different (but not necessarily greater) risks of electronic signatures versus paper signatures.
Basic law of signatures
A signature is any mark applied to a document, intended, at that time, to be the signature of the signatory (ex parte Myers (1884) 10 VLR 322 at 324). Subject to any contrary statute, the mark could be a handwritten, typewritten or stamped name, a cross, or any other marking applied with that intention. The intention must be present when the mark is applied (ex parte Gleeson (1897) 22 VLR 485).
The mark can be made by the signer personally applying their mark, directing somebody (the amanuensis) in their presence to then and there apply a mark, or authorising somebody (the agent) to sign (Thomson v McInnes (1911) 112 CLR 562 at 573).
Where a statute requires a personal signature, the mark cannot be applied by an amanuensis or agent. This is a question of construction (In re Whitley Partners Ltd (1886) 32 Ch D 337) that does not require the words ‘signed personally’.