A trend is emerging whereby Courts are beginning to permit court documents to be validly served upon parties by posting them on their Facebook and other social networking sites.
A judgement of a Supreme Court in the ACT had previously permitted a firm of Solicitors to use a Defendants’ Facebook site to serve a Court judgement upon them. This shouldn’t come as a surprise given that both email and mobile phone messages have previously been used as a medium for the service of court documents.
The Supreme Court acceded to the request to use the site to serve notice of a default judgement on two lenders who had defaulted on their loan taken out with MKM Capital to refinance their property.
MKM applied to the court for a judgement for both the unpaid amount of the loan owing and for possession of the defendants’ property after the couple failed to appear in court to defend the action.
The defendants’ non-appearance resulted in a default judgement being granted, with MKM being left to locate the defendants and serve them with a copy of the judgement. Engaging private investigators failed to locate the defendants. It was at this point that the Solicitors for MKM scrutinised their Facebook profiles which revealed their dates of birth, email addresses and friends’ lists.
The information appearing on the defendants’ Facebook websites was found by the Court to be sufficient to satisfy the Master of the Supreme Court that the internet site was a sufficient method of communicating with the defendants.
The decision raises the question of how much evidence must be presented to a Court in order for them to be satisfied that the information on a social networking site is authentic, and hasn’t been fabricated or falsified by a third party. In this particular case it was established that the debtors in question had in fact posted correct details on their profiles.
In a more recent decision of Byrne v Howard, a Federal Magistrate has permitted a child support application to be served upon an individual on his facebook application, after which he shut down his Facebook and MySpace accounts. The application was for parentage testing, a declaration of paternity and an application for assessment of child support. The Applicant sought an order for substituted service. Most Court rules provide for orders for substituted service where reasonable steps have been taken to locate and serve a document.
If for any reason, it is impracticable to serve a document as required by the court rules by way of personal service, the court may make an order dispensing with service or substituting another way of service of the document concerned.
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