Middleton, Gaye --- "You've been served! Substituted service of process online in Australia" [2016] PrecedentAULA 10; (2016) 132 Precedent 38

YOU’VE BEEN SERVED! SUBSTITUTED SERVICE OF PROCESS ONLINE IN AUSTRALIA

By Gaye Middleton

Digital technology is changing the way in which many activities are conducted. Even traditional legal procedures such as service of process are not immune from changes arising from emerging digital technologies. This article discusses when and how substituted service of process via online means may be permitted in Australia.

Service of process notifies a person of the commencement of legal proceedings against them, and enables the court from which that process was issued to exercise its jurisdiction over that person.^[1]

Service of a document is only effective ‘if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document’.^[2]

The usual means to effect service of process is personal service, by leaving a copy of the process document with the intended recipient^[3] while they are physically in the geographical jurisdiction of the court from which that process was issued.^[4]

SUBSTITUTED SERVICE

To obtain an order for substituted service, the applicant must establish that, as at the date of the application for substituted service:

(1) it is impracticable to effect personal service on the other party to the proceedings; and

(2) it is reasonably likely that the proposed method of substituted service will bring the proceedings to the attention of the other party.^[5]

With respect to the first requirement, ‘impracticable’ does not mean ‘impossible’, nor does it mean ‘inconvenient’.^[6] Rather, it means that personal service cannot be effected with the available means,^[7] such as where the intended recipient cannot be physically located^[8] or is evading service.^[9]

Having established that it is impracticable to effect personal service, the applicant must prove that the proposed means of substituted service is likely to bring the proceedings to the attention of the other party in a timely fashion.^[10]

SERVICE ONLINE

Australian courts have granted orders for substituted service by various online means. Examples of cases regarding applications for substituted service by online means are discussed below.

Service by email

Email is one method of serving documents by way of substituted service online. The applicant has the evidentiary burden of establishing that documents sent to a specified email address will come to the attention of the intended recipient or their legal representative.

In Permanent Custodians Limited v Massey,^[11] the plaintiff applied for an order to effect service by email to the defendant and their solicitor. On 10 September 2008, the plaintiff’s solicitors telephoned a person who identified himself as the defendant. Although the defendant refused to provide a physical address where he could be located, he provided an email address where the plaintiff’s solicitors could write to him. On 12 September 2008, the plaintiff’s solicitors wrote to the defendant at that email address, and received a response from that address. On 15 September 2008, the plaintiff’s solicitors received an email from a person claiming to be the defendant’s solicitor. When the plaintiff’s solicitors replied to that email, they received a response from the defendant’s solicitor from a different email address. The plaintiff’s solicitors filed a statement of claim on 18 September 2008, and on 29 January 2009, they applied under r 116 of the Uniform Civil Procedure Rules 1999 (Qld) for an order for substituted service of the statement of claim by email to the addresses previously provided by the defendant and his solicitor.

The court found that it was impracticable to effect personal service on the defendant. However, in the absence of email communications from the defendant or his solicitor after the statement of claim was filed on 18 September 2008, the court refused to grant an order for substituted service, as it was not satisfied that as at the date of the application:

(1) the defendant could still be contacted at the email address used in September 2008;

(2) the defendant’s solicitor was still acting in the matter; or

(3) an email sent to the email address previously provided by the defendant’s solicitor would come to that solicitor’s or the defendant’s attention.^[12]

An order for substituted service by email was granted in Electrolux Home Products Pty Ltd v Delap Impex Ltd.^[13] Electrolux sought orders restraining Delap, a Hungarian company, from advertising, promoting or supplying Electrolux products in contravention of Australian laws. Delap’s website named Suzanne Szabo as its Australian contact, and provided a contact telephone number. When Electrolux’s solicitors contacted Ms Szabo on that number, she would provide only an email address to which documents could be sent. During a subsequent call, Ms Szabo told Electrolux’s solicitors that she was associated with Delap and was located in Perth, but she was not asked for her address. Electrolux’s solicitors unsuccessfully tried to ascertain Ms Szabo’s address by searching the electoral rolls, an ASIC register, the Perth White Pages, the Western Australian land titles register and death notices. Subsequently, under r10.24 of the Federal Court Rules 2011 (Cth), Electrolux’s solicitors sought an order for substituted service on Ms Szabo by sending documents to the email address she had provided.

The court found that while Electrolux had not attempted to personally serve Ms Szabo, she appeared unwilling to provide an address at which she could be personally served. Together with the unsuccessful efforts of Electrolux’s solicitors to find Ms Szabo’s address, the court concluded that it was not feasible to effect personal service on Ms Szabo,^[14] and the applicants were granted leave to serve Ms Szabo at her supplied email address.^[15]

The court confirmed that the words ‘not practicable’ in r10.24 of the Federal Court Rules 2011 (Cth) were not intended to make it more difficult to obtain an order for substituted service than under O7 r9 of the Federal Court Rules 1979 (Cth), where the term ‘impractical’ is used. The Explanatory Statement to Part 10 of the 2011 Rules states that it merely ‘adopts, simplifies and streamlines the process and procedures which operated under the former Rules and does not substantially alter existing practice’.^[16]

If an order for substituted service by email is granted, the onus is on the party serving the documents to show that they have been received in a readable form by the intended recipient.^[17]

Service by social media

In a groundbreaking decision, the Supreme Court of the Australian Capital Territory granted an order for substituted service via social media in MKM Capital Pty Ltd v Corbo and Poyser.^[18] After usual means of service failed, the court ordered substituted service of notice of default judgment on two defaulting borrowers via a private message to the defendants on Facebook. The plaintiffs established that it was reasonably likely that the document would be brought to the defendants’ attention in this manner by leading evidence that the dates of birth and email addresses on the public Facebook profiles matched those stated in the defendants’ loan application, and that the defendants were mutual ‘friends’ on Facebook.^[19]

Earlier, in Citigroup Party Ltd v Weerakoon,^[20] the Queensland District Court refused an application to serve documents via Facebook. The court was not satisfied that the Facebook profile in question belonged to the defendant, and noted that ‘anyone can create an identity that could mimic the true person’s identity’.^[21]

The Federal Magistrates Court granted an order for substituted service via Facebook of an application for parentage testing, a declaration of paternity and an assessment of child support in Byrne v Howard.^[22] The applicant had unsuccessfully attempted to contact the respondent by mail and through his father, and the court found that the respondent moved regularly and was probably aware of the proceedings. The applicant’s solicitors subsequently sent the documents to the respondent via private message on Facebook, which he was known to access regularly. The applicant identified the photo on the Facebook profile as that of the respondent. An electronic receipt confirmed delivery of the message sent to the respondent, although the respondent did not send a formal delivery notification. After the applicant’s solicitors sent the documents to the respondent via Facebook, the respondent’s Facebook and MySpace accounts were closed.

In considering whether to grant an order for substituted service pursuant to rr6.14 and 6.15 of the Federal Magistrates Court Rules 2011 (Cth), the court held that:

(1) the applicant had taken all reasonable steps to serve the document in the normal way and that it could be inferred that the respondent was not particularly amenable to the process of the proceedings; and

(2) it was highly likely that the proceedings had been brought to the respondent’s attention, whether by receiving one of the applicant’s letters, by learning of them through his father, or by reading the documents sent via Facebook.

Accordingly, the court found that the application had been properly served on the respondent.

Victorian Police successfully obtained an order for substituted service via Facebook of an intervention order made against a man who used Facebook to threaten, bully and harass his former girlfriend.^[23] When attempts to contact the man at his former address and by telephone failed, the police transcribed an intervention order into Facebook private messages to the man and posted a video of a policeman reading and serving the intervention order. After the police were granted an order for substituted service via Facebook by the Magistrates Court, the police successfully contacted the man, who admitted receiving the messages and agreed to comply with the intervention order.^[24]

The New South Wales Supreme Court ordered substituted service via LinkedIn in Graves v West.^[25] In that case, the defendant in a personal injury case in the New South Wales Supreme Court left Australia for the United Kingdom before the hearing. Mr Howe, a solicitor who had formerly been acting for the defendant, subsequently filed a Notice of Intention to File a Notice of Ceasing to Act. The plaintiff consequently sought an order for substituted service by email to the defendant’s Hotmail webmail address and to a LinkedIn account, which showed evidence of the defendant’s profile and in respect of which the plaintiff’s solicitor provided evidence regarding why they believed it was the defendant’s account. While Mr Howe had not filed a Notice of Ceasing to Act following the Notice of Intention, the court found that there was relatively clear evidence that the defendant had left the jurisdiction and that Mr Howe was not acting for the defendant in the proceedings or otherwise. Mr Howe stated that he was not aware of the defendant’s street address in the United Kingdom. The court granted the plaintiff the order it sought for substituted service via Hotmail and LinkedIn, finding that in circumstances where the defendant has left the jurisdiction without leaving any forwarding address with his solicitor, who at the time was still acting for him, there was no other practicable way of serving the defendant with further documents that may need to be served in the proceedings.^[26]

In the United Kingdom, the High Court in Blaney v Persons Unknown^[27] ordered substituted service of an injunction on an unknown Twitter user via a Twitter direct message linking to the injunction. The injunction ordered the unknown Twitter user to stop impersonating the plaintiff on Twitter. The unknown Twitter user had been impersonating the plaintiff by tweeting from a Twitter account that used a copy of the plaintiff’s photograph, linked to the plaintiff’s blog, and which imitated the plaintiff’s style of writing.^[28] To the author’s knowledge, there have not been any orders made for substituted service via Twitter in Australia to date, and it remains to be seen if Australian courts will follow the lead of the UK High Court.

Potential pitfalls of substituted service via email and social media are demonstrated by Flo Rida v Mothership Music Pty Ltd.^[29] That case concerned proceedings for breach of contract by the applicant against Flo Rida, a US rap music artist, who failed to appear at a music festival after receiving a $55,000 advance payment to do so.

On being unable to personally serve Flo Rida due to his security arrangements, the applicant obtained an order under r10.14 of the Uniform Civil Procedure Rules 2005 (NSW) for substituted service by email and private message via Flo Rida’s Facebook page. As Flo Rida did not appear in the proceedings, the New South Wales District Court entered default judgment against him.

Flo Rida appealed this decision, submitting that the order for substituted service should not have been made. The New South Wales Court of Appeal granted Flo Rida’s appeal and set aside the default judgment on the following grounds:

(1) The New South Wales District Court does not have jurisdiction based on personal service of process outside Australia. Accordingly, the order for substituted service ought not to have been made without evidence that the means of substituted service were likely to bring the proceedings to Flo Rida’s attention while he was in Australia, given that Flo Rida was due to leave Australia the day after the order was made.^[30]

(2) The evidence before the primary judge did not establish, other than by mere assertion, that the Facebook page in question belonged to Flo Rida, or that a posting on that page was likely to come to his attention in a timely fashion.^[31]

(3) The order for substituted service by email was defective as it did not identify the intended recipients of the emails.^[32]

When seeking an order for substituted service via social media, it is important to:

(1) ensure that you comply with the terms of use applicable to the social media platform;

(2) ensure that the privacy settings on the social media account allow you to acquire sufficient information to prove that the account belongs to the intended recipient; and

(3) comply with privacy laws in serving the intended recipient via their social media account.^[33]

Service by cloud services

Use of an internet hosting service (cloud service) such as Dropbox may be useful when a party to proceedings wishes to serve large documents by way of substituted service. However, it is important to ensure that the intended recipient of the documents actually receives them.

The potential pitfalls of serving documents via cloud services are demonstrated by Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd.^[34] That case concerned an adjudication under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA). Basetec made an adjudication application in respect of a payment claim made on Conveyor & General Engineering (CGE) under a construction contract between the parties. Basetec purported to serve CGE with documents relating to that adjudication by way of an email containing hyperlinks to access those documents via Dropbox. While CGE and its solicitors read the email and its attachments, they did not access the documents hosted in Dropbox until more than a week later.

When CGE accessed the documents in Dropbox, it made submissions to the adjudicator challenging service. However, the adjudicator found that service had occurred when CGE and its solicitors read Basetec’s email providing links to the Dropbox documents rather than when the documents were actually accessed. Accordingly, the adjudicator found that CGE’s submissions were made out of time under the statutory timeframes, and proceeded to decide in favour of Basetec.

CGE applied to the Queensland Supreme Court to set aside the adjudicator’s decision. It submitted that it was denied the opportunity to provide an adjudication response because the adjudicator erred in concluding that service was effected, and hence the time for a response started running, when CGE’s solicitors received Basetec’s email.

The court found that material in the Dropboxes was not part of an electronic communication for the purposes of s11 of the Electronic Transactions (Queensland) Act 2001 (ETA), which permits the provision of information in writing by way of electronic communication in certain circumstances. The reason for this finding was that none of the data, text or images within the documents in the Dropboxes was itself electronically communicated. Rather, Basetec’s email electronically communicated the means by which other information in electronic form could be found, read and downloaded from Dropbox.^[35] The court also found that Basetec could not rely on s11 of the ETA because CGE had not consented to the provision of information (namely, Basetec’s adjudication submissions) by an electronic communication.

Further, the court held that while service does not require the recipient to read the documents being served, there must be something in the nature of receipt of those documents.^[36] CGE did not become aware of the contents of the Basetec documents until it accessed the Dropboxes, being a week after CGE had received Basetec’s email. For this reason, the court held that the adjudicator had erred in concluding that CGE was out of time to provide an adjudication response, and hence the resulting adjudication decision was of no effect. The result in this case may have been different had CGE and Basetec agreed to service via Dropbox in the construction contract, under s103 of BCIPA.

CONCLUSION

Australian courts have demonstrated their willingness to make orders for substituted service via online means. However, it remains incumbent on the party seeking such an order to establish that it is impracticable to effect personal service and it is reasonably likely that the proposed method of substituted service will bring the proceedings to the attention of the other party.

Gaye Middleton is Senior Legal Counsel with the Nextgen Group, Melbourne. EMAIL [e-mail].

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^[1] Graczyk v Graczyk [1955] ALR (CN) 1077.

^[2] Capper v Thorpe [1998] HCA 24 at [21].

^[3] See High Court Rules (2004) (Cth) r9.02; Federal Court Rules (2011) (Cth) r10.1; Court Procedure Rules (2006) (ACT) r6405; Uniform Civil Procedure Rules (2005) (NSW) r10.21; Supreme Court Rules (2008) (NT) O6 r2; Uniform Civil Procedure Rules (1999) (Qld) r105(1); Supreme Court Civil Rules (2006) (SA) r67; Supreme Court Rules (2000) (Tas) r135; Supreme Court (General Civil Procedure) Rules (2005) (Vic) r6.03; Rules of the Supreme Court (1971) (WA) O72 r2.

^[4] Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310.

^[5] See Federal Court Rules (2011) (Cth) r10.24; Court Procedure Rules (2006) (ACT) r6460; Uniform Civil Procedure Rules (2005) (NSW) r10.14(1); Supreme Court Rules (2008) (NT) O6 r9; Uniform Civil Procedure Rules (1999) (Qld) r116; Supreme Court Civil Rules (2006) (SA) r67; Supreme Court Rules (2000) (Tas) r141; Supreme Court (General Civil Procedure) Rules (2005) (Vic) r6.10; Rules of the Supreme Court (1971) (WA) O72 r4.

^[6] Alstom Limited & Ors v Sirakas [2010] NSWSC 669 at [40].

^[7] Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 at [78].

^[8] For example, see Byrne v Howard [2010] FMCAFAM 509.

^[9] For example, see Electrolux Home Products, note 7 above.

^[10] P George et al, Social Media and the Law, LexisNexis Butterworths, Chatswood, 2014 at [7.43].

^[11] [2009] QSC 4.

^[12] [2009] QSC 4 at [12].

^[13] [2013] FCA 600.

^[14] Ibid, at [80].

^[15] See also Specsavers Pty Ltd v Buyinvite Pty Ltd [2012] FCA 230.

^[16] [2013] FCA 600 at [77].

^[17] Austar Finance v Campbell [2007] NSWSC 1493 at [49].

^[18] Case No. SC 608 of 2008, Supreme Court of the Australian Capital Territory, 12 December 2008, Master Harper (unreported).

^[19] A Bradford, ‘Service of Court Documents via Social Networking Websites’ (29 March 2011): http://www.attwoodmarshall.com.au/service-of-court-documents-via-social-networking-websites-by-alica-bradford-attwood-marshall-lawyers/.

^[20] [2008] QDC 174.

^[21] Ibid, per Ryrie J.

^[22] [2010] FMCAfam 509.

^[23] T Hunter, ‘Net-bully Facebooked by Victoria Police’ Sydney Morning Herald, 20 October 2010: http://www.smh.com.au/technology/technology-news/netbully-facebooked-by-victoria-police-20101019-16suk.html.

^[24] K Lord, ‘Police Serve Intervention Order Through Facebook’ ABC News, 21 October 2010: http://www.abc.net.au/news/2010-10-20/police-serve-intervention-order-through-facebook/2304144; L Tay, ‘Victoria Police Serve Intervention Order on Facebook’ IT News, 20 October 2010: http://www.itnews.com.au/news/victoria-police-serve-intervention-on-facebook-235848.

^[25] [2013] NSWSC 641.

^[26] [2013] NSWSC 641 at [16].

^[27] (Unreported, UK High Court, Lewison J ChD, 1 October 2009).

^[28] J Kirk, ‘UK High Court serves injunction over Twitter’: CIO, 2 October 2009: http://www.cio.com.au/article/320826/uk_high_court_serves_injunction_over_twitter/; B Fitzgerald et al, ‘Web 2.0, Social Networking and the Courts’, (2012) 35(3) Australian Bar Review 281-301.

^[29] [2013] NSWCA 268.

^[30] Ibid, at [37].

^[31] Ibid, at [38].

^[32] Ibid, at [39].

^[33] Clayton Utz, ‘Police Serve an Intervention Order via Facebook’, 22 November 2010: http://www.claytonutz.com/publications/news/201011/22/police_serve_an_intervention_order_via_facebook_social_media_as_the_next_frontier_in_legal_process.page.

^[34] [2014] QSC 30.

^[35] Ibid, at [28].

^[36] Ibid, at [37].

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