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If you have received court documents via social media, there are several things you will want to consider before responding. This article sets out what individuals and small businesses need to know about substituted service and how to properly respond to court documents brought against you via social media. 

Is it an Official Court Document?

Firstly, check whether the document is an official court document that begins a legal proceeding, known as an originating process. Official court documents will typically bear the seal of the relevant court and a date and time of filing.

Formal court documents will have a court stamp on them and either be: 

  • personally served on you (delivered in person by a process server); or 
  • delivered to your company’s registered office. 

If they are brought to your attention in some other way, including via social media, they should be accompanied by a court order (called a substituted service order) authorising them to be served in that manner. 

Often, the other party will take steps to resolve a dispute before officially beginning court proceedings against you. These can include:

  • speaking with you;
  • making an informal demand;
  • asking their lawyers to send a formal letter of demand; and 
  • asking their lawyers to draft an originating process (also known as a claim, statement of claim, summons or writ) and send it to you a final time before actually filing it. 

However, proceedings will only commence once an originating process has been filed at a court and properly served (or delivered) to you.

What Is Substituted Service?

Substituted service is where a party is granted a court order permitting them to deliver court documents to the other party informally (i.e. not in the usual manner, in-person via a process server). Informal delivery is acceptable as long as they bring the proceedings to the other party’s attention in the manner specified.

The court will usually only grant a substituted service order to a party which has made reasonable attempts at personal service. They must also have sufficient evidence to show that the steps they propose to take are likely to bring the proceedings to your attention. Substituted service is usually used when someone is trying to avoid service. 

How Can Substituted Service Occur?

A substituted service order can include attempting to bring the proceedings to someone’s notice using:

  1. Instagram;
  2. SMS; 
  3. Linkedin;
  4. Facebook;
  5. email;
  6. postal mail; or
  7. delivering it to their home or business address.

How Can I Tell if I Have Been Properly Served?

There are a few steps you can take to check whether you have been properly served. However, even if you think that you may not have been properly served, you may still have to take some actions to avoid a default judgement. 

A default judgement is a judgement that is handed down against you automatically because you ignored documents commencing legal proceedings against you. 

You should: 

  1. check whether the documents have a court stamp;
  2. call the court to ask whether they have a record of the proceeding; and
  3. check to see whether there is a substituted service order included with the legal documents (and whether it has been correctly followed).

What Happens if I Receive Documents From a Court in a Different State or Country?

The process above is the same, even if you are served with a court document from a different state. The only difference is that the documents will be accompanied with an additional form which states that you can object to having the hearing in that state in certain circumstances.

However, receiving court documents from overseas is far more complex. This will depend largely on the country where the documents came from and how they were served to you. It is a good idea to call the court from which they are issued to make sure that the case actually exists. 

What Do I Do if I Receive a Substituted Service Order?

If a court has issued a substituted service order, the court will presume that it has been served on you once:

  • all the necessary steps have been followed; and 
  • an affidavit of service has been filed. In other words, the process server has filed a document confirming that you have received the legal documents. 

The first thing that you should do is work out how long you have left before the deadline for you to respond. You can do this by asking the law firm on the documents. It may also be possible to get the other party to agree to extend the deadline if you need additional time to respond. It is very important to get such an agreement in writing to avoid any further dispute.

What Can I Do to Avoid Substituted Service?

While there is nothing that you can do to prevent a court from issuing a substituted service order, you can avoid the need for such an order by keeping your contact details up to date and cooperating with any process servers. If you attempt to avoid personal service, you may have to pay the additional costs incurred by your actions. Therefore, it is a good idea to: 

  • arrange a time and a place to accept service of legal documents from a process server; or 
  • authorise your lawyers to accept service on your behalf and provide your lawyer’s details to the process server.

Please be aware that it has become fairly common for law firms to try to serve court documents via email with the expectation that you will acknowledge receipt. If you do acknowledge receipt of documents by email, then you may be deemed to have accepted service. If you have accepted service, you will have to respond to the documents appropriately. 

Key Takeaways

If you receive court documents via social media, you should first check that they are legitimate. In addition, you should check if they have been properly served on you with the correct documentation attached. Once you have confirmed the existence of genuine court proceedings, you will need to respond appropriately within the given timeframe. If you have any questions about the documents you have received via social media, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page. 

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