As previously discussed, you can serve certain court documents via email. This is acceptable as per the rules of the court. You may then ask, can I serve court documents via social media such as Facebook, Twitter or Instagram? As with so many good questions, the answer is – well, it depends.
In 2013, the New South Wales Court of Appeal (‘NSWCA’) addressed whether service of court documents or information could be effected upon none other than Flo Rida. Flo had agreed to perform at the “Fat As Butter” music festival in Newcastle in 2011 but failed to show up.
When Flo was next in Australia, the festival organiser sued him for breach of contract but was unable to serve the originating process personally. Accordingly, to bring the court proceeding to Flo’s attention, the festival organiser obtained an order for substituted service.
What is Service?
In Australia, a court case commences when one party files the relevant legal documents outlining the nature of the claim and the orders sought from the court. Court processes can only commence once you serve the originating process on the party you want to include in a court claim. There are specific rules a plaintiff must comply with when serving the relevant legal documents.
In most cases, to serve a legal document on an individual, the court will usually require ‘personal service’. It involves either:
- leaving a copy of the document with the person to be served; or
- putting the copy down in the person’s presence and telling the person of the nature of the document (if the person does not accept the copy).
However, in certain circumstances, such as the Flo Rida case, courts can do away with the above requirements by agreeing to an order for substituted service.
What is Substituted Service?
You may find it impractical to serve a document in the manner required by the rules of the court. As such, the court may order you to take extra steps to bring the document to your counterparty’s attention. In this sense, a fulfilled substituted service order is quite useful. Let us suppose you cannot serve your counterparty via the traditional methods. In such circumstances, you could petition the court for this order. This order’s legal effect is that your counterparty is considered to have been ‘served’ with the necessary documents. You would pursue this order if you intend to commence legal proceedings against this party.
In the Flo Rida case, the court granted the festival organiser an order for substituted service. As such, the festival organiser sent the court documents to Flo Rida’s email and Facebook page.
However, on appeal, the appeal court determined the lower court should not have granted the substituted service order. Interestingly, the appeal court did state that:
“The evidence…did not establish, other than by 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…”
Continue reading this article below the formCase Study of Wakim v Criniti
In the recent case of Wakim v Criniti, the NSW Supreme Court granted an order for substituted service. The order allowed the plaintiff to carry out the serving of the documents upon the defendant via Facebook, Instagram and LinkedIn.
Prior to the court granting this order, the plaintiff had taken extraordinary steps to locate the defendant, to no avail. The Court required the plaintiff to go to such extraordinary lengths. Otherwise, the Court would not recognise the plaintiff had served the defendant.
The Court’s decision to allow substituted service via social media was largely attributable to the defendant’s behavioural patterns. The defendant actively used social media. As such, the Court reasoned it was quite likely that serving the defendant with these documents via social media would bring the documents to the defendant’s attention.
Requirements to Obtain an Order for Substituted Service via Social Media
Whether by a Facebook private message, Tweeting, Instagram direct inbox or perhaps even Tinder, the method selected to effect substituted service must likely bring the documents to the relevant person’s attention.
In addition to demonstrating to the court your attempts to serve documents have failed or are impractical, it will be necessary to show the following:
- that the social media account you plan to contact actually belongs to the other party;
- that the person actually still uses that social media account at the present time; and
- the specified social media platform must also bring the document/information to the person’s attention in a timely fashion.
It is common knowledge that social media posts, once published, are instantaneously viewable. Nevertheless, you must inform the court how frequently the other party appears to access their account. Additionally, you must inform the court how quickly and likely it is the other party will respond to you.
Generally speaking though, when it comes to serving documents, you must first attempt personal service. However, in certain cases, where personal service is unavailable or unlikely to succeed, a plaintiff may make an application to the courts for an order for substituted service. In these cases, a court may make an order that service can be affected via social media platforms such as Facebook.
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Key Takeaways
Service is the process of providing copies of legal documents on the parties in a case. Substituted service is an order granted by the courts that allows a party to serve documents on another party to the case in a fashion other than personal service. Crucially, you can serve documents on parties via social media platforms such as Facebook. However, you must be able to demonstrate that the person you are trying to serve accesses Facebook regularly. You need to demonstrate that the documents will be brought to their attention if you serve them with the documents in this manner.
If you need assistance regarding serving documents or with your dispute matter more generally, contact our experienced litigation lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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