On 10 June 2021, in the unreported case of Sunshine Phone Systems Pty Ltd (In Liquidation) & Anor (proceedings 204/20), Long DCJ of the Maroochydore District Court in Queensland handed down orders in favour of the Plaintiff/Applicant for substituted service of the Claim and Statement of Claim (Pleadings) by way of attachment to email and uploading electronic copies by the Facebook Messenger application to each of the accounts linked to the Defendants.

Scenario:

1. The Defendants in this matter were a director and shareholder of the Plaintiff prior to its liquidation;
2. The Plaintiffs have made demands for payment of the loans, which they allege that the Defendants are personally liable for;
3. On 4 December 2020, the Plaintiffs issued proceedings after failed attempts to recover the loan amounts;
4. It became apparent to the Plaintiffs that the address for service, or residential address, of the Defendants was no longer occupied or used by the Defendants, and the Plaintiffs only had limited contact details for the Defendants.
5. On 4 May 2021, the Plaintiffs/Applicants filed an Application for Substituted Service.

What is Substituted Service?

Rule 105 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides that a person serving an originating process must serve it personally on the person intended to be served.

Rule 116 of the UCPR provides that, where it is impracticable (emphasis added) to serve a document in a way required under the UCPR (e.g. rule 105), the court may make an order substituting service by another way, including specifying the steps to be taken, instead of service, to bring the document to the attention of the person being served.

It is important to note that the Applicants/Plaintiffs (as in most cases) bore the onus of establishing, or convincing the Court, that it was impracticable to personally serve the Pleadings on the Defendants. The elements of what constitutes ‘impracticable’ is not dealt with herein.

The Applicants/Plaintiffs’ Evidence

The Applicants/Plaintiffs’ solicitors, FC Lawyers, instructed an Investigator/Process Server (Process Server) to conduct a ‘Skip (Person) Trace’ to locate the whereabouts of the Defendants. In the Process Server’s affidavit it was evidenced that the Defendants (amongst other things): (i) do not have a known residential address; (ii) do not have a known business registered; (iii) do not own any real property; and (iv) appeared to be living on, or travelling by, a boat along the coast of Australia.

In further affidavits filed by a solicitor of FC Lawyers, it was evidenced that:

1. The First Defendant: (i) had two Facebook profiles which contained information (including a profile picture, work history, location history and friends list) capable of identifying the First Defendant; (ii) was an active user on Facebook (posting on their page as recently as 8 June 2021, two days prior to the hearing); (iii) was friends with the Second Defendant and shared a similar Facebook Profile picture depicting both Defendants; and (iv) was capable of being contacted via private message through Facebook; and
2. the Second Defendant: (i) had an email address which was last used on 13 October 2020; (ii) had a Facebook profile which contained information (including a profile picture, work history, location history and friends list) capable of identifying the Second Defendant; (iii) was capable of being contacted via private message through Facebook; (iv) on 9 June 2021 (the day prior to the hearing of the Application), contacted FC Lawyers, confirming his email address (being same as previously used), phone number and that the Defendants were travelling by boat around Australia; and (v) responded by email to FC Lawyers, accepting service of the Pleadings attached in email correspondence.

FC Lawyers submitted to the Court that extensive efforts had been made to effect personal service of the Defendants, and the Defendants had failed and/or refused to disclose their current location for the purposes of effecting personal service. Given it was impracticable to effect personal service on the Defendants, who were travelling by boat around Australia, and successful communication was established by email with the Second Defendant, the Court’s jurisdiction to make an order substituting another way of serving the Pleadings was enlivened (rule 116 of UCPR). It was further submitted that in circumstances where the First Defendant was an active user on Facebook, and remained married to the Second Defendant, the use of the Facebook messenger system would bring the documents to the attention of the Defendants. It was emphasised to the Court that:

“the primary object of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings” (Queensland Construction and Engineer Proprietary Limited and Wagner [2011] QDC 171).

Important Notes

In His Honour’s decision it was relevantly noted that the Court was not satisfied for substituted service to only take place by email and that other methods were required in addition thereto (in this instance Facebook). It must also be noted that the Court was not satisfied that service was effected when the Second Defendant acknowledged and accepted service by email in the first instance. The Plaintiffs/Applicants were required to repeat the process by including copies of the Orders.

The above is only a brief summary of the evidence and dialogue exchanged in the proceedings and are not exhaustive or meant to be read as indicative of all elements required to satisfy the Courts’ discretion to exercise their powers under rule 116 of the UCPR. The substantive matter is still in progress.

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