SERVICE OF PROCEEDINGS ON FACEBOOK

Service of proceedings on Facebook
Although appellate authority is - understandably - thin on the ground, the position
that emerges from recent cases in New Zealand, the UK and Australia is that
posting a message on a user’s Facebook page may been acceptable method of
SERVICE OF
PROCEEDINGS ON
FACEBOOK
substituted service provided evidence establishes that the page is that of the
person to be served and the account is active and the posting is therefore likely to
come to the user’s attention in a timely fashion.
1
In March 2009, in Axe Market Gardens Limited v Axe, the New Zealand High
Court ruled that substituted service could be made on a defendant overseas via
Facebook as newspaper advertising could not be effectively targeted. Since then,
New Zealand courts have continued to make orders providing for service by
January 2014
Facebook.
2
In February 2012, the High Court of England and Wales for the first time allowed
3
service on an individual defendant via Facebook. The Court allowed the service
as the claimant established that the account belonged to the individual defendant
to be served (colleagues from the related defendant company were Facebook
friends) and was active (the defendant had recently added two friends).
The New South Wales Court of Appeal recently considered the appropriateness
of this method of substituted service.
4
Flo Rida v Mothership Music Pty Ltd
Mothership Music Pty Ltd (“Mothership”) is the organiser of the “Fat as Butter”
festival in Newcastle. It contracted Flo Rida to perform at the 2011 event as the
headline event but the festival took place without Flo Rida’s appearance.
Mothership learnt that that Flo Rida would be coming to Australia in April 2012
and began proceedings for breach of contract. It was unable to effect service on
Flo Rida personally so applied to the District Court for an order for substituted
service. The proceedings were subject to some media attention.
1
CIV-2008-485-2676, High Court Wellington, 16 March 2009, Gendall AJ. See our previous article:
Allison Ferguson and Felicity Monteiro “High Court Allows Service of Proceedings on Facebook”
International Law Office Newsletter: Litigation – New Zealand (online ed, 19 May 2009).
2
In Re Adoption Application [2012] NZFC 6597, the Family Court allowed service via Facebook where
there was evidence that the page belonged to the recipient; in DJP v MBCT [2013] NZFC 2901, the
same Judge, again in the Family Court, acknowledged that service via Facebook was good service.
3
AKO Capital LLP & Another v TFS Derivatives & Others, Teare J, unreported, an action in which an
investment manager and investment fund were seeking recovery against an employee of £1.3 million
of overpaid commissions.
4
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268, 20 August 2013.
Wilson Harle is one of
New Zealand’s leading
firms in the areas of
competition, consumer,
and trade practices law.
An employee of Mothership filed an affidavit in support of the application. The
affidavit said that, after Mothership’s attempts at personal service of court
documents were unsuccessful, she made attempts to serve Flo Rida by emailing
the documents to two members of his management team. She had also followed
a link on the official Flo Rida website to the Flo Rida Facebook page and posted
notices on the Facebook wall alerting him to the documents. She said it was
possible to send Flo Rida “private messages" via the Facebook page and noted
that the publicity about the case and the difficulty Mothership was having in
serving him might have brought the proceedings to Flo Rida’s attention.
5
The District Court, referring to Axe Market Gardens and Australian cases in
For any social media queries,
which it was ordered that documents could be served on defendants by
please contact the authors:
notification on Facebook, made an order providing for substituted service by
email and private message to Flo Rida via the Flo Rida Facebook page. The
NIC SCAMPION
[email protected]
DDI: +64-9 915 9712
MOB: + 64 21 823 378
order was made the day before Flo Rida was likely to be returning to the United
States. He did not make an appearance and judgment was entered against him
for AUD 380,400.60.
Flo Rida then appeared conditionally to challenge the District Court’s jurisdiction
and appeal the judgment. He argued that the order for substituted service should
not have been made. On the question of jurisdiction, the New South Wales Court
of Appeal noted that the District Court is an inferior court of limited jurisdiction
and, for it to have jurisdiction, service must be effected within Australia. It
considered the District Court was wrong to order substituted service in the
absence of evidence that the documents would come to the attention of Flo Rida
while he was in Australia. It considered it would be “a subversion of the policy
underlying [the] provisions to permit avoidance by the simple device of a
substituted service order.”
This article is a summary of the
law only, and not legal advice.
6
Although the Court of Appeal overturned the decision of the District Court on the
jurisdictional point, it did not otherwise doubt the ability of a court to order that
service be effected via Facebook. The Court of Appeal’s comments, albeit obiter
dicta, suggest that posting on a recipient’s Facebook page is a permissible
means of substituted service if evidence establishes that the Facebook page is in
fact that of the person to be served and the posting is likely to come to that
person’s attention – at the place he is to be served - in a timely fashion.
5
MKM Capital Pty Ltd v Corbo & Poyser, an unreported judgment of Master Harper of the ACT
Supreme Court in 2008; Byrne v Howard [2010] FMCAFAM 509.
6
Flo Rida v Mothership Music Pty Ltd at [31].

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