Australia: Mr process server wants to connect with you... service by social media

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.

For further information, please contact:

Tom Johnston, Senior Associate
Phone: +61 2 9233 5544
Email: tej@swaab.com.au

James Skelton, Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.