Australian Court Allows Service Via Facebook
The English Court has, in a number of recent cases, considered the liability which may arise from Facebook profiles and blogs. The Australian Court has now considered the potential presented by the electronic age for procedural innovation and has granted permission for the service of a default Judgment via Facebook. Whether or not the English Court will be prepared to follow suit remains to be seen, but recent revisions to the Civil Procedure Rules in relation to service of proceedings indicate that the Court may be prepared to allow new methods of service by electronic means.
MKM Capital Property Limited v Corbo & Poyser
In the Australian Capital Territory Supreme Court, MKM obtained a default Judgment against Ms Corbo and Mr Poyser, but the attorneys representing MKM then experienced difficulty serving the Judgment (a pre-cursor to enforcement) by traditional means. The attorneys discovered that Ms Corbo and Mr Poyser both maintained active Facebook profiles. On the application of MKM, the Australian Court found that the default Judgment could reasonably be expected to come to the attention of Ms Corbo and Mr Poyser if notice of it and its terms were sent to them in a message via Facebook. The Court therefore allowed this novel form of service on the condition that the default Judgment was also served by the more traditional means of sending the Judgment to the Defendants’ last known postal address.
A similarly enlightened approach to alternative methods of service is hinted at by recent revisions to the English Civil Procedure Rules. The Rules allow service of proceedings and documents by an alternative method, or at an alternative address, if the Applicant can show that there is a ‘good reason’ for alternative service and that the Claim Form or document is likely to reach the attention of the party being served. Of particular note is the accompanying Practice Direction to the new Rules which provides an example of a valid alternative method of service by notifying a party by text message that documents are to be found at a particular place.
Conclusion
Decisions of the Australian Court can be persuasive in England because of the similarities between the laws of Commonwealth jurisdictions. However, to be persuasive, the Judgment must be available publicly and must explain the basis for the Court's decision. The Australian Court is being encouraged to provide a public Judgment and it may, therefore, only be a matter of time before similar methods of service are allowed by the English Courts.
For further information on this topic, please contact Keith Ashby.
Issued February 2009.
