I recently received a request for a blog post on applications for substituted service in the Federal Magistrates Court. It is a topical issue at present, so I thought I would oblige.

In Byrne & Howard [2010] FMCAfam 509 (21 April 2010) Brown FM had such an application to consider.

Relevantly His Honour informed us of the criteria the Court will consider in an application for substituted service under the Federal Magistrates Court Rules 2001, namely:
- Whether reasonable steps have been taken to attempt to serve the subject document/s;
- Whether those reasonable steps are likely to have brought the existence and nature of the documents to the attention of the person being sought to be served;
- Whether the person to be served could become aware of the existence and nature of the documents in question by means of an advertisement or some other means of communication that is reasonably available;
- The likely costs of the substituted service to the Applicant; and
- Any other relevant matter.

His Honour went on to find that:
- The Applicant and those advising her had taken all reasonable steps to serve the document in the normal way prescribed by the Rules.
- It is highly likely that the application had been brought to the attention of the Respondent in one of several ways:
1 Either one of the letters has got to him in some way;
2 He has heard, via his father, that the Applicant is looking for him; and
3 He has read the email which contains the documents in question and which was sent either to the Facebook account which he holds or to the MySpace account.

Service via Social Media
His Honour subsequently confirmed that:
- Service by Facebook and MySpace was a means of communication which was reasonably available to all concerned;
- That method of service is likely to lead to a situation where the Respondent and person sought to be served becomes aware of the existence and nature of the documents sought to be served; and
- It is a cost-efficient method.

Conclusion
So in any application for substituted service in the Federal Magistrates Court under Part 6 (Service) of the Federal Magistrates Court Rules 2001, the supporting affidavit material of the Applicant will need to clearly show the following:
- Reasonable steps have been taken to attempt to serve the subject document/s;
- The proposed method of service is likely to bring the existence and nature of the documents to the attention of the person sought to be served;
- The extent to which the person to be served could become aware of the existence and nature of the documents in question by means of:
1 an advertisement; or
2 some other means of communication that is reasonably available;
- The likely costs to the Applicant of the proposed substituted service;
- The proposed substituted service is a cost-efficient method; and
- Why the discretion ought be exercised in favour of granting the requested substituted service.

In addition where service is sought to be effected by way of social media, the evidence before the Court must show that:
- The person who created the relevant social media page is indeed the Defendant;
- The relevant social media profile was in fact the profile of the Defendant;
- The Defendant was regularly accessing his relevant social media account; and
- The Defendant would reasonably get notice of the relevant document/s, if a private message or email was sent to his account.

Once again invest wisely in your application for substituted service. It may be the only way you can put your client on the path to achieving judgment satisfaction.

Ross Bowler LLB
 


Comments

03/03/2012 5:38pm

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03/03/2012 11:07pm

Thank you Mr Hall for reading the post, leaving a useful comment and largely reproducing the post at your site, with appropriate attribution. I have posted your article to my on-line paper Bowler Barrister: Criminal & Family, my Google+ page, my Twitter account and LinkedIn. Feel free to contact me if you would like any further assistance.

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