Mr Process Serv­er wants to con­nect with you…

In Brief

Recent­ly the Irish High Court ruled that court doc­u­ments could be served via a per­son­’s LinkedIn account. The wide­spread adop­tion and active engage­ment with social media sites, includ­ing LinkedIn, Face­book and Twit­ter, facil­i­tate an unprece­dent­ed lev­el of con­nec­tiv­i­ty in Aus­tralia and abroad. Does this mean that we can now also use these means to effect ser­vice on anoth­er par­ty in Australia?

Not with­out real evidence!

Courts in Aus­tralia, par­tic­u­lar­ly in NSW, need to see a clear con­nec­tion between the per­son to be served and the social media account. Pro­files can be fake or con­trolled by peo­ple oth­er than the intend­ed recip­i­ent. Appli­cants for an order of sub­sti­tut­ed ser­vice must ensure evi­dence with real force is sub­mit­ted to the court to con­vince them that the doc­u­ments will come to the atten­tion of the right person.

Ser­vice by social media internationally

In Sep­tem­ber 2014, Judge Bron­agh O’Han­lon of the Irish High Court ruled that a per­son could be served via LinkedIn. This move affirmed the 2012 Irish deci­sion in Daly v Lynch that ruled that a Court order could be served via Facebook.

In the mat­ter before Jus­tice O’Han­lon, the respon­dent was unable to be con­tact­ed in per­son, by email, fax or post. The Court heard evi­dence that the only form of con­tact for the respon­dent was a LinkedIn con­nec­tion. LinkedIn is a pop­u­lar social media forum designed for the busi­ness com­mu­ni­ty that facil­i­tates net­work­ing and com­mer­cial con­nec­tions. LinkedIn indi­cates to users when a mes­sage has been received and read and on this basis, Jus­tice O’Han­lon was sat­is­fied that the doc­u­ments to be served would be received by the respon­dent and that ser­vice could be effected.

This fol­lows a sim­i­lar deci­sion of the New Zealand High Court in March 2009. In Axe Mar­ket Gar­dens Lim­it­ed v Axe, Asso­ciate Jus­tice Gen­dall allowed sub­sti­tut­ed ser­vice orders whilst the defen­dant was over­seas. The court heard that recent con­tact had been made with the defen­dant by email and that the plain­tiff was also aware of a Face­book pro­file oper­at­ed by the defen­dant. In these cir­cum­stances, the court ordered that the pro­ceed­ings may be ser­viced via Face­book and email.

Sim­i­lar deci­sions have been made in oth­er juris­dic­tions around the world includ­ing Blaney v Per­sons Unknown in the UK, Knott v Suther­land in Cana­da and CMC Wood­work­ing Machin­ery (Pty) Ltd v Pieter Oden­dall Kitchens in South Africa.

The posi­tion in Australia

In the 2008 case of MKM Cap­i­tal Pty Ltd v Cor­bo & Poyser, the ACT Supreme Court con­sid­ered whether sub­sti­tut­ed ser­vice by Face­book of a default judg­ment was per­mit­ted by a lender on two mort­gagees after the mort­gagees failed to make repay­ments on their home loan. The Court per­mit­ted sub­sti­tut­ed ser­vice by Face­book after it was sat­is­fied that the Face­book pro­files matched the mort­gagees by iden­ti­fy­ing their birth dates and email addresses.

How­ev­er, around the same time in 2008, Jus­tice Ryrie of the Dis­trict Court of Queens­land refused an appli­ca­tion for sub­sti­tut­ed ser­vice via Face­book in the case of Cit­i­group Pty Ltd v Weer­akoon. Her Hon­our refused the appli­ca­tion because she was not sat­is­fied that the Face­book page belonged to the defen­dant and com­ment­ed:

In light of look­ing at the… uncer­tain­ty of Face­book pages, the fact 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 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. (MKM Cap­i­tal Pty Ltd v Cor­bo & Poyser [2008] QDC 174 at [50])

In 2012, the Dis­trict Court of NSW per­mit­ted a state­ment of claim to be served via Face­book on Flo Rida, an Amer­i­can rap­per, for breach of con­tract fol­low­ing his fail­ure to attend the music fes­ti­val Fat as But­ter’. The appli­ca­tion for sub­sti­tut­ed ser­vice was brought on the basis that while attempts were made by the pro­mot­er to per­son­al­ly serve the rap­per, they were ulti­mate­ly unsuc­cess­ful because he was con­stant­ly sur­round­ed by his secu­ri­ty and entourage.

How­ev­er, the deci­sion was over­turned on appeal in Flo Rida v Moth­er­ship Music Pty Ltd [2013] NSW­CA 268 with Mac­far­lan JA con­clud­ing that the evi­dence did not estab­lish any­thing oth­er than a mere asser­tion that the Face­book page was in fact that of Flo Rida and did not prove that a post­ing on it was like­ly to come to his atten­tion in a time­ly fashion.

That is not to say that ser­vice can­not be effect­ed via social media in NSW. In Graves v West [2013] NSWSC 641, Jus­tice Davies ordered that ser­vice via the defen­dan­t’s LinkedIn account, along with ser­vice via a per­son­al email account, was suf­fi­cient to bring doc­u­ments to the atten­tion of the defen­dant, who had left the coun­try and no longer had legal rep­re­sen­ta­tion. The order was made only because solic­i­tors for the plain­tiff were able to estab­lish suf­fi­cient evi­dence of the defen­dan­t’s pro­file on the social media platform.

At a fed­er­al lev­el, Brown FM, as he was then known, in Byrne v Howard con­sid­ered the issue of sub­sti­tut­ed ser­vice using a social media site and allowed ser­vice via Face­book and oth­er elec­tron­ic means includ­ing email, con­clud­ing:

I think it is the case that this is a means of com­mu­ni­ca­tion which is rea­son­ably avail­able to all con­cerned, and as such, that it is like­ly to lead to a sit­u­a­tion where Mr Howard has become aware of the exis­tence and nature of the doc­u­ments through which Ms Byrne has insti­tut­ed these pro­ceed­ings in this court. (Byrne v Howard [2010] FMCAFAM 509 at [27])

His Hon­our lat­er not­ed that sub­sti­tut­ed ser­vice through elec­tron­ic means includ­ing social media sites is a cost-effi­cient method”. Such a fac­tor would no doubt be con­sid­ered in the pub­lic inter­est and assist the access to jus­tice of those engaged in lit­i­ga­tion by reduc­ing the costs involved, albeit only a minor reduction.

In light of the above, it is imper­a­tive that in any appli­ca­tion for sub­sti­tut­ed ser­vice by way of social media be sup­port­ed by suf­fi­cient evi­dence that con­nects a social media account with the par­ty to be served. Courts in Aus­tralia, par­tic­u­lar­ly those in NSW, are still reluc­tant to draw a con­nec­tion between a par­ty and their social media account or pro­file where there is a ques­tion regard­ing the prove­nance or authen­tic­i­ty of that account or pro­file. Nev­er­the­less, as we spend more and more time con­nect­ing through social media, it should come as no sur­prise that the law will con­tin­ue to slow­ly creep into this space and ser­vice by social media will become more frequent.