It is not uncommon for practitioners and litigants to encounter difficulty serving Court proceedings. Quite frequently a recipient will actively avoid service or simply cannot be located.
In these circumstances, practitioners and litigants may give consideration to alternate and untraditional forms of substituted service. One such alternative is to endeavour to serve a party via their social media account/s. This is thought to be “demonstrative of social movements and the currency of the times” and indeed it is becoming more prevalent in day to day practise.
This article considers recent cases in which Orders for substituted service have been made allowing service of Court proceedings via social media, the rules relating to Orders for substituted service and what evidence ought be put before the Court in support of the same.
Byrne & Howard
In Byrne’s case, Ms Byrne commenced a proceeding in the Federal Magistrates Court of Australia (as it then was) on 22 January 2010. She sought Court Orders for inter alia a declaration that Mr Howard was the father of a young child X, born in 2009.
Ms Byrne and her legal representatives were unable to successfully communicate with Mr Howard and/or serve Court documents upon him. The Court subsequently made an Order allowing substituted service of Court documents by social media.
In making the Order for service via social media and being satisfied “that it is appropriate that these proceedings, should be taken to have been brought to Mr Howard’s attention
1. Mr Howard had not responded to letters sent to him from Ms Byrne’s legal representatives. Moreover, these letters had not been returned to Ms Byrne’s legal representatives as being unclaimed.
2. Mr Howard did not have stable accommodation. Whilst the Court was not critical of Mr Howard in that regard, it found that he moved fairly regularly.
3. A letter had been sent to an address believed to be occupied by Mr Howard’s parents. No response was received to the letter and it had not been returned unclaimed.
4. A letter was sent to an address believed to be associated with Mr Howard’s then girlfriend. Again, no response was received to this letter and it had not been returned unclaimed.
5. A process server was engaged to serve the documents on Mr Howard at his parents’ address. Mr Howard’s father informed the process server that Mr Howard was in Queensland and that he had not heard from him in some time.
6. Mr Howard operated an account and profile on the social media platforms MySpace and Facebook. The Court was provided with evidence that:
(a) the photograph associated with the accounts/profiles was that of Mr Howard; and (b) private messages could be sent to Mr Howard via those accounts/profiles.
7. Delivery receipts confirming that the messages enclosing the Court documents had been sent to Mr Howard via the accounts/profiles.
8. Confirmation that Mr Howard had closed the accounts/profiles following successful transmission of the Court documents to same by private message.
Interestingly, in obiter, Brown FM (as he then was) commented that service via social media may be “…a cost-efficient method, and it may be that although the process servers that have been retained in this matter were happy to assist, ultimately it may not be of assistance to their ongoing business, as the 21st Century unfolds, but that’s another question.
Maguire & Klein
In Maguire’s case, Mr Maguire commenced a Court proceeding in the Family Court of Australia. He sought parenting Orders in respect of a child, B, whom was eight years old.
The mother, Ms Klein, did not attend Court, file documents or participate in a conference with a family consultant. Further, the mother had placed three children (including the subject child B) into the care of her parents in late-October 2015, and withdrew her responsibility for them.
On 25 May 2016, a Court Registrar found that Mr Maguire’s solicitor had gone to “extraordinary lengths” to locate the mother. The Registrar subsequently made an Order for service of Mr Maguire’s Court documents to be effected by forwarding the documents to Ms Klein’s Facebook messenger page.
Ultimately, the Court made the Orders as sought by Mr Maguire on an undefended basis in circumstances where Ms Klein had briefly conversed with Mr Maguire’s current wife via Facebook messenger and Court documents sent to Ms Klein via Facebook messenger had been marked as ‘seen’ “presumably, but not inevitably, by [Ms Klein].”
What do the Rules allow?
Both of the foregoing decisions identify the Family Law Courts’ willingness to embrace alternate and socially evolving methods of service. The adaptability of the relevant Rules of Court assist in that regard.
Both the Family Law Rules (the FLR) and the Federal Circuit Court Rules (the FCCR) empower the relevant Court to make Orders substituting the prescribed method of service for that of an alternate method.
Rule 7.18 of the FLR empowers the Family Court of Australia to make an Order for substituted service. Further, it is also permissible that the Family Court of Australia may also make an Order for subtitled service by virtue of:
1. Rule 1.10 which empowers the Court to make “an order, on application or on its own initiative, in relation to any matter mentioned in [the] Rules” unless a legislative provision states otherwise;
2. Rule 1.12 which grants the Court broad discretion to “dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises”; and
3. Rule 7.02 which grants the Court broad discretion regarding service enabling it to “find that a document has been served or that it has been served on a particular date, even though [the] Rules or an order have not been complied with in relation to service.”
In considering whether to make an Order for substituted service, the Court may have regard to the following:
1. “the proposed method of bringing the document to the attention of the person to be served; 2. whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served; 3. whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available; 4. the likely cost of service; and 5. the nature of the case.”
If, having regard to the foregoing matters (and others the Court considers relevant) the Court finds that an Order for substituted service is appropriate, it may Order that service of a document is:
1. “dispensed with unconditionally; or
2. dispensed with on a condition that is complied with”.
Rule 6.14(1) of the FCCR empowers the Federal Circuit Court to make an Order for substituted service allowing the Court to “may make an order dispensing with service or substituting another way of serving the document” if “it is impracticable to serve a document in a way required under this Part”.
Similarly to the FLR, it is also permissible that the Court may make an Order for subtitled service by virtue of r. 1.06(1) of the FCCR which grants the Court broad discretion to “dispense with compliance, or full compliance, with any of these Rules at any time” if it is in the interests of justice to do so.
In considering whether to make an Order or substituted service, the Court may have regard to the following:
3. “whether reasonable steps have been taken to attempt to serve the document; and 4. whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and 5. whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and 6. the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and 7. any other relevant matter.”
If, having regard to the preceding matters (and others the Court considers relevant) the Court finds that an Order for substituted service is necessary, it may Order and specify:
1. “the steps to be taken for bringing the document to the attention of the person to be served”; and
2. “that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time”.
How should an application for substituted service be made?
In the Family Court of Australia, an application for substituted service should be made by way of an Application in a Case and an affidavit. This indicates that a discrete application is required and that an Order for substituted service should not be sought in the Initiating Application.
Whilst the above requirement may, in a large number of cases, result in little prejudice as it is unknown whether there will be a difficulty effecting service, there are circumstances when such difficulties will be known at the time of filing an Initiating Application. In those cases, it may be permissible to seek an Order for substituted service in the Initiating Application provided an Order is also sought for the Court to dispense with the requirement for same. As outlined above, r. 1.12 grants the Court broad discretion to dispense with compliance with any of these Rules. Such course of action is not, however, condoned by this article.
Unlike the FLR, the FCCR do not appears to require that an application for substituted service be made by way of a discrete application. An Order for same may be sought in the Initiating Application.
What evidence should be provided to the Court?
An applicant seeking an Order permitting substituted service of a court proceeding should adduce all relevant evidence including inter alia:
1. Matters addressing each of the factors contained within r. 7.18(2) of the FLR or r. 6.15 of the FCCR (as applicable).
2. A summary of the Orders being sought.
3. The last known residential and professional address(es) of the respondent.
4. The last known contact details for the respondent including, for example, an email address and landline and mobile telephone number.
5. The names, and addresses of contact details for family members of close friends of the respondent.
6. The outcome of all enquiries to locate the respondent including, for example, the outcome of any search of the electoral roll.
7. The outcome of all attempts made to communicate with, or serve, the respondent.
8. Full particulars as to whether the respondent has historically sought to avoid service of Court proceedings.
9. Full particulars of any previous Court Orders made for substituted service should be included and copies of those Orders annexed to the affidavit.
10. Full particulars as to any whether the respondent uses social media such as Facebook, Instagram or Twitter.
Changes to social dynamics and the mediums via which information can be communicated will, and continues to, have an impact on legal processes. The use of social media and the manner in which Court Rules can be applied with regard to the preceding examples identify one manner in which processes can evolve.
Social media can often represent a sensible and cost effective medium for the service of a Court proceeding and should be considered in cases in which service has found to be, or is anticipated to be, difficult. It is, however, imperative that the relevant Rules are complied with in order to take advantage of the same.