Insta-served: Service by social media

Any originating process (eg Statement of Claim or Summons) filed in the Supreme Court must be personally served. In order to effect personal service on a person,  a copy of the originating process must be left with the person, or if the person does not accept the copy, can be put down in the person’s presence and by telling the person  the nature of the document.

If an originating process cannot practicably be personally served, the Court may order that in lieu of personal service, specific steps are to be taken to bring the document to the notice of the person (ie. “substituted service”). If steps have already been taken to bring the document to the notice of the person, the Court may order that the document be taken to have been served on the subject on a date specified in the order.

What constitutes “bringing the documents to the notice of the person concerned” continues to evolve to take into account the increasingly popular use of social networking websites by individuals.

Can a document be insta-served?

Recently, in the NSW Supreme Court case of Wakim v Criniti, the plaintiff sought an order that personal service of the Statement of Claim be effected on the defendant on social networking websites Facebook and Instagram.

The Court noted that notwithstanding thorough and extensive attempts to locate the defendant, the Statement of Claim could not practicably be served on the defendant in person. Ultimately, the Court held that the proposed method of service (i.e. via Facebook, Instagram and LinkedIn) was likely to bring the Statement of Claim to the notice of the defendant.

Similarly, in the ACT Supreme Court it was held that a Judgment could be served via Facebook when Master Harper in MKM Capital Pty Ltd v Corbo & Poyser was satisfied the Facebook profiles were created by the respective defendants and service via Facebook would bring the Judgment to their attention.

Post by Matthew Gradidge and Justin Ho

The “official” Facebook page

Interestingly, orders for substituted service have been denied in circumstances where the Court formed the view that it had not been proven that the controller of the relevant social media account was in fact the person who was required to be served.

In Queensland, her Honour Justice Ryrie in Citigroup Pty Limited v Weerakoon in response to a request from the plaintiff that substituted service be effected by emailing a copy of the claim to the defendant’s Facebook page, took the view that it had not been proven the Facebook page in question was in fact the defendant’s.

A similar outcome was reached in Flo Rida v Mothership Music Pty Ltd where the New South Wales Court of Appeal unanimously agreed that the decision made by the District Court ordering service of the Statement of Claim via the appellant’s Facebook page was misguided as the evidence did not establish that the Facebook page was indeed the appellant’s. Further, it was not proven that posting on Flo Rida’s Facebook page would likely bring the Statement of Claim “to his attention in a timely fashion”. Accordingly, the order for substituted service granted by the District Court was set aside.

So can I or can’t I?

Whether a document can be brought to the attention of a person via social networking depends on the relevant circumstances of the matter and the subject person. Whilst it is becoming increasingly accepted that service via social media can be encapsulated in orders for substituted service, it is important to provide the Court satisfactory evidence that shows the subject person operates the relevant social media account.

It appears that the important elements that permit an order for substituted service via a social networking website include whether:

  1. the social networking account in question actually belongs to the person to be served;
  2. the person to be served still uses the social networking account at the time the substituted order is made; and
  3. substituted service by way of social networking website will bring the document(s) to the attention of the subject in a timely fashion.

It remains to be seen, in relation to celebrities and other high-profile individuals, whether the service is deemed effected via social networking websites when such accounts may be managed by others as opposed to being regularly monitored by the individual themselves.

Should you wish to discuss your options in relation to serving an individual or corporation please do not hesitate to contact Rod Cameron on 02 9293 5407 or  Matthew Gradidge on 02 9293 5431.

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