Substituted service of legal documents via Facebook: “like” or “unlike” by Australian courts

by Helen Tieu
12 December 2012

In brief - Australian courts may permit service of legal documents via Facebook

Service of documents via Facebook and other social networking sites may be permitted by courts where personal service cannot be effected. However, courts may refuse permission where there is doubt that the person who created a particular page on a social networking site is in fact the defendant.

Personal service of legal documents not always possible

Personal service of legal documents is sometimes not possible because the party to be served cannot be physically located or is a celebrity constantly surrounded by security.

Over recent years, a trend has emerged where Australian courts are permitting the service of documents to be effected through Facebook and other social networking sites.

Service of legal documents in NSW

The service of a legal document is the process of ensuring that a party who is required to be given a copy of that document is provided with it in a way that complies with the relevant procedural rules.

In New South Wales, the relevant procedural rules governing service are set out in the Uniform Civil Procedure Rules 2005 (NSW) ("the NSW UCPR").

Personal service is required when an originating process, such as a statement of claim, is to be served on an individual. Part 10, Rule 21 of the NSW UCPR provides:

10.21 How personal service effected generally 

(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.

(2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3) Service in accordance with subrule (2) is taken to constitute personal service.

Personal service of an originating process is also required when a corporation is served. Part 10, Rule 22 of the NSW UCPR provides:

10.22 Personal service on corporation

Personal service of a document on a corporation is effected:

(a) by personally serving the document on a principal officer of the corporation, or

(b) by serving the document on the corporation in any other manner in which service of such a document may, by law, be served on the corporation.

Where personal service is not achievable, a party may make an application to the court for an order of substituted service in accordance with Part 10, Rule 14 of the NSW UCPR. Rule 14 provides:

10.14 Substituted and informal service generally

(1) If a document that is required or permitted to be served on a person in connection with any proceedings:

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(4) Service in accordance with this rule is taken to constitute personal service.

It follows that the court may grant an order permitting substituted service via Facebook or other social networking sites, where it can be shown that personal service is unable to be effected.

Applications for substituted service via social networking sites are already part of Australian law. There are examples of recent cases in Australia where the courts have permitted or refused substituted service through social networking sites. 

Court permits lender to serve default judgment on mortgagees via Facebook

In December 2008, substituted service through Facebook was permitted in the case of MKM Capital Pty Ltd v Corbo & Poyser, an unreported judgment of Master Harper of the ACT Supreme Court. (See also Australian court serves documents via Facebook and Lawyers to serve notices on Facebook, Sydney Morning Herald, December 2008.)

The case involved a foreclosure notice by MKM Capital Pty Ltd, a lender, on two mortgagees, Ms Carmel Corbo and Mr Gordon Poyser, after they failed to make repayments on their $150,000 home loan.

As a result of the mortgagees' default on the loan, the lender obtained default judgment against the mortgagees. The default judgment could not be effected through personal service on the mortgagees.

An application for substituted service via Facebook was subsequently made by the lender and granted by the court. The court permitted substituted service through Facebook on the basis that the lender's lawyers were able to match personal identification information about the mortgagees by way of their Facebook profiles - for example, their birth dates and email addresses.

Citigroup not permitted to serve statement of claim on defendant via Facebook

In Citigroup Pty Ltd v Weerakoon [2008] QDC 174, Judge Ryrie of the District Court of Queensland refused an application for substituted service via Facebook.

In this case, Citigroup made an application for substituted service pursuant to Rule 116(1) of the Uniform Civil Procedure Rules 1999 (Qld), which permit substituted service:

If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.

Rule 116(1) of the QLD UCPR is equivalent to Part 10, Rule 14 of the NSW UCPR.

Citigroup asserted that personal service of its statement of claim on the defendant to the proceeding, Achuka Weerakoon, was unable to be effected. Accordingly, Citigroup sought to serve its statement of claim on the defendant by way of post to the defendant's last known address or, alternatively, by way of email to the defendant's Facebook page.

Judge Ryrie refused to allow substituted service by way of Facebook, based on the following reasoning:

I am not so satisfied in light of looking at the - the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the true person's identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant. [At 50 to 60]

However, Judge Ryrie allowed substituted service via post at the last known address for the defendant.

Police obtain court order to serve order via Facebook on alleged cyberbully

In October 2010, Australian police successfully obtained a court order to serve an order on an alleged cyberbully using Facebook, as personal service was unable to be effected. (See Australia police serve court order via Facebook, Sydney Morning Herald, October 2010.)

It is apparent that the Australian police demonstrated that the alleged cyberbully was a prolific Facebook user and accordingly, service of the court order via Facebook would be brought to the alleged cyberbully's attention - that is, substituted service could be effected through Facebook.

Promoter of music festival permitted to serve statement of claim via Facebook 

In May 2012, the District Court of NSW permitted the promoter of an Australian music festival, known as the "Fat as Butter" festival, to serve a statement of claim on Flo Rida, an American rapper, via Facebook, following the rapper’s failure to appear at the music festival despite being paid a $55,000 performance fee in advance. (See Flo Rida served through Facebook, Sydney Morning Herald, May 2012.)

The promoter apparently tried on several occasions to serve the claim physically on Flo Rida but failed for reasons including that he was constantly surrounded by an entourage and security.

Courts may permit substituted service through social networking sites

It appears that Australian courts will permit substituted service through social networking sites if they can be satisfied that such sites are a sufficient method of effecting service where personal service is impracticable.

It also appears that Australian courts will not permit substituted service through social networking sites where they cannot be satisfied that a party to a proceeding created a particular page on a social networking site, as a person's identity on such pages can be mimicked.

As discussed above in Citigroup v Weerakoon, a party seeking substituted service through a Facebook page must establish that the defendant's identity has not been mimicked on that page and show "with real force" that the person who created the page is in fact the defendant.

To summarise, the factors that the courts are likely to take into account when determining an application for substituted service are as follows:

• the reasons why the document cannot practicably be served on a person - that is, an explanation as to why personal service is impracticable or cannot be effected;

• the method of substituted service proposed. If substituted service via Facebook is proposed, a party is likely to be required to show with "real force" that the person who created the Facebook page might be the person to be served;

• whether the proposed method of substituted service is likely to bring the proceedings or a particular legal document to the notice of the person to be served.