There have been a few cases in which Courts have been prepared to grant orders to permit service of court documents through social media sites such as Facebook.
As previously reported Facebook was used to serve court documents, and in Byrne v Howard, a Federal Magistrate permitted a child support application to be served upon a man through a facebook application.
In the ACT Supreme Court, Master Harper, arrived at a decision allowing a lender to serve a default judgement on debtors via Facebook after traditional measures had failed was hailed as a world wide precedent.
Police have also used Facebook to serve Intervention Orders.
Most Court rules provide for orders for what is known as “substituted service” where the Court is satisfied that reasonable steps have been taken to locate and serve a part through other means to serve them with process. 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 mode of service for legal process.
The issue of what circumstances would make it appropriate to make such an order and whether or not it was legally effective and valid arose in a recent NSW Court of Appeal decision in Flo Rida V Mothership Music Pty Ltd  NSWCA 268.
Where originating court process to commence court action cannot be served personally on the other parties, an Applicant must seek a court order to the effect that the originating process process be permitted to be served in another manner.
Such an application for “substituted service” will only be granted and result in an order where a Judge is presented with evidence which satisfies them that it is practically impossible for personal service to take place and the method of substituted service the Applicant proposes is reasonably likely to bring the person’s person’s attention to the document.
The Court of Appeal had to determine, based on the evidence and the law, whether or not legal documents served on an party, international rapper Flo Rida, through his Facebok page constituted legally valid service.
The dispute that led to the claim involved Flo Rida being paid $55,000 in advance to appear and perform at a Newcastle Music Festival. Flo Rida had contractually agreed to perform at the Festival Flo Rida contractually agreed to perform at the Festival as the headline act but failed to appear, thus breaching his contract. As a result the promoter of the festival, Mothership Music Pty Ltd launched legal proceedings against him for breach of contract, claiming additional damages over and above the $55,000 performer fee he was paid.
However when Mothership Music tried to service Flo Rida they were unsuccessful due to the level of security surrounding the performer, and approached the NSW District Court in April 2012 to seek an order for substituted serve allowing them to serve Flor Rida with the court documents via his Facebook page.
Evidence was presented before the Court that process servers had made numerous attempts to serve Flo Rida in New South Wales and Victoria by attending a number of social engagements at which he was appearing but, for various reasons, the process servers were prevented from getting sufficiently near him to serve him and provide him with a copy of the relevant legal documents.
The District Court approved the following form of service, namely a post on his Facebook page as follows:
“On Friday, 13 April 2012, Mothership Music Pty Ltd commenced proceedings against you in the
District Court of New South Wales, Australia, seeking damages for breach of contract in respect
of your non-appearance on 22 October 2011 at the “Fat as Butter” Concert.If you do not file a
defence to these proceedings within 28 days of service, the Court may enter judgement against you without further notice to you.”
After the posting was made, Flo Ridap did not respond by filing a defence to the claim and therefore the Court awarded judgement to Mothership Music Pty Ltd for in excess of $400,000 in damages for loss of ticket sales and sonsorship revenue for the event.
Flo Rida successfully appealed this decision, claiming service on him via Facebook was legally defective.
Although the NSW Court of Appeal advanced a number of reasons for upholding Flo Rida’s appeal. One of the problems with the order for substituted service in this particular case was that such an order cannot be made under the r10.14 of the Uniform Rules of Civil Procedure if as was suggested the rapper had already left Australia before the Order was made. This was therefore not just a case of alleged practical difficulty in serving the rapper, rather a legal difficulty.
More critically, the Court made an important legal finding that the order granted by the NSW District Court for substituted service through Facebook should not have been made on the grounds that there wasn’t sufficient evidence to establish that the Facebook page was in fact Flo Rida’s page and further that there was an alternative way of bringing the legal documents to his attention in this case.
The Court remarked that merely posting on the rapper’s Facebook page would not have necessarily have brought the legal matter to Flo Rida’s attention in a timely manner.
The Applicant had merely approached the NSW District Court stating that there was no other way of bringing the process to his attention and that they had his Facebook page in order to achieve this.
The Court of Appeal however clearly ruled that it isn’t sufficient for an Applicant seeking this kind of order to merely make assertions to a Court in order to gain a valid order. Rather there needs to be sufficient evidence presented before a Court in order to support the order for substituted service.
The Court judgement doesn’t necessarily mean orders cannot be granted for substituted service, but highlights the need for Applicants to think carefully about the types of procedures they may need to go through in order to gather sufficient evidence to support their assertions when approaching a Court for an application for substituted service, in this case through a social media site.