Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

National Finance Ltd v Tapalai [2019] PGNC 239; N8044 (11 October 2019)

N8044

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 248 OF 2019

BETWEEN
NATIONAL FINANCE LIMITED
Plaintiff

AND

ELIJAH TAPALAI
Defendant

Waigani: Makail, J
2019: 9^th & 11^th October

PRACTICE & PROCEDURE – Service of originating process – Service of writ of summons – Mode of service – Informal service of writ – Service of writ by social media website – Copy of writ of summons posted on facebook – Proof of controller or holder of facebook account or email account was person required to be served – Lack of – Order sought to confirm service declined – National Court Rules – Order 6, rule 13

Facts

The plaintiff applied by notice of motion for an order that the writ of summons posted on Facebook be confirmed as being served on the defendant pursuant to Order 6, rule 13 of the National Court Rules.

Held:

1. Where a plaintiff is unable to physically locate a defendant to serve legal documents, it can be sufficient to execute service via social media: Wakim v. Criniti (2016) NSWSC 1723.

2. Where a plaintiff posts a copy of the writ of summons (writ) on Facebook, one cannot be certain that the writ will reach the defendant as the intended recipient. There must be proof that the Facebook page in question belonged to the defendant: Citigroup Pty Limited v. Weerakoon (2008) QDC 174 and Flo Rida v. Mothership Music Pty Ltd (2013) NSWCA 286 applied.

4. In this case, service of court documents via social media like Facebook may be adopted but not too readily. There must be proof that the Facebook page in question belonged to the defendant. Conversely, there must be proof that the person who responds to it was in fact the defendant.

5. There was no proof that the person who responded to the post on Facebook was in fact the defendant.

6. The motion was declined and an order for substituted service of the writ by publication in one of the daily newspapers was granted.

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases
Wakim v. Criniti (2016) NSWSC 1723
Citigroup Pty Limited v. Weerakoon (2008) QDC 174

Flo Rida v. Mothership Music Pty Ltd (2013) NSWCA 286

Counsel:
Mr. M. Puri, for Plaintiff
No appearance, for Defendant

RULING

11^th October, 2019

1. MAKAIL, J: The conventional modes of service of an originating process, in this instance, writ of summons (writ) which are permitted under the National Court Rules are:

(a) Personal service – Order 6, rules 1, 2 & 3.

(b) Service at proper address of the person to be served – Order 6, rule 4(1)(a).

(c) Service by pre-paid post– Order 6, rule 4(1)(b).

(d) Service by acceptance by solicitor – Order 6, rule 8.

2. In this case, according to the affidavit of a para-legal of the plaintiff filed 22^nd March 2019 and the affidavit of counsel for the plaintiff filed 13^th September 2019, an attempt to serve the writ on the defendant at his last known work address at the National Housing Corporation was unsuccessful because the defendant was no longer working there. Further attempts to contact the defendant at his last known telephone number was also unsuccessful. Finally, a notice put in one of the local daily newspapers advising the defendant to attend at the plaintiff’s office to discuss the outstanding loan also failed because the defendant did not attend. In the end, the plaintiff had not been able to locate and serve the writ in this proceeding on the defendant.

3. However, it had been able to post a copy of the writ of summons electronically on Facebook. It says that the defendant had responded and acknowledged receiving the copy of the writ on 17^th August 2019. According to the writ, the plaintiff is seeking damages in the sum of K27,127.84 as outstanding loan against the defendant.

4. By notice of motion filed 13^th September 2019 it seeks an order “that the Writ of Summons served via Facebook on the Defendant on 17^th August 2019 be taken to have been duly served on the Defendant on the said date”.

5. It relies on Order 6, rule 13 of the National Court Rules as conferring discretion on the Court to grant the order sought.

“13. Informal service: Confirmation. (9/11)

Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, but steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person have been taken, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.”

6. It submits that as it has been impracticable to locate and serve the writ on the defendant, by posting the copy of the writ on Facebook and that it has been acknowledged by the defendant is sufficient to establish that it had taken“steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person” under Order 6, rule 13and that an order to confirm that the writ was served on the defendant via Facebook on 17^th August 2019 will be in order to grant.

7. According to the affidavit in support of counsel (supra) he communicated with the defendant and attached a copy of the writ using a Facebook account under an alias “Nancy Fines”. He says that it appeared that the defendant read the message and received the writ and sent reply email to him.

8. A copy of the defendant’s email shows that the defendant was suspended by the National Housing Corporation soon after he obtained the loan from the plaintiff and was unable to repay but prepared to discuss settlement. Although it was agreed between the parties that they meet to discuss settlement, it did not eventuate.

9. What the plaintiff had done and seeks the Court’s endorsement highlights the changes in the world of technology and its impact on the way the Court does its business. Traditionally and I can say this without any hesitation that, judges are accustomed to ordering substituted service of court documents by publication in the daily newspapers to bring the documents to the notice of the subject under Order 6, rule 12 of the National Court Rules.

10. Today, the Court is being asked to go one step further by making use of the availability of social media to confirm the posting of the writ on Facebook as another method of service of the writ on the defendant. The issue then is, is posting the writ on Facebook sufficient for the purpose of bringing or having the tendency of bringing the writ to the notice of the defendant and that the Court can confirm that the writ was served on the defendant via Facebook?

11. About three years ago in the State of New South Wales in Australia, in the case of Wakim v. Criniti (2016) NSWSC 1723, the Supreme Court held that where a plaintiff is unable to physically locate a defendant to serve legal documents, it can be sufficient to execute service via social media. That was a case where the plaintiff sought an order that personal service of the Statement of Claim be effected on the defendant on social networking websites Facebook and Instagram.

12. However, it appears that this view has not been widely accepted or firmly established because in some cases, it has not been proven that the controller or what I would call “holder” of the social media account was in fact the person required to be served. There are other wider issues which make it quite uncertain if the use of social media is an effective medium of dissemination of information of legal proceedings.

13. For instance, whether the person to be served is still using the social networking account at the time substituted order was made or confirmation of service via this medium was made. The other is, whether substituted service via social networking website will bring the court documents to the attention of the subject in a timely fashion.

14. In Citigroup Pty Limited v. Weerakoon (2008) QDC 174 the Court was confronted with these issues. There, the plaintiff applied for substituted service to be effected by emailing a copy of the claim to the defendant’s Facebook page. The Court held that it had not been proven that the Facebook page in question belonged to the defendant. This is what the judge said when giving her reasons for forming this view, which are pertinent to the present case:

“I am not so satisfied in light of looking at the – the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the true person’s identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.”

15. In Flo Rida v. Mothership Music Pty Ltd (2013) NSWCA 286 the same view was expressed by the New South Wales Court of Appeal. The Court unanimously agreed that the decision of the District Court ordering service of the Statement of Claim via the appellant’s Facebook page be quashed because there was no evidence to prove that the Facebook page was indeed the appellant’s.

16. The other reason was that, it was not proven that posting on Flo Rida’s Facebook page was likely to bring the Statement of Claim to the attention of the appellant in a timely fashion.

17. The up-shot of all these is that, while using social media such as Facebook may be a useful method of bringing to the notice of the defendant a copy of the writ, the downside of it is that, one cannot be certain that the writ will reach the defendant as the intended recipient. This is because the true person’s identity is uncertain. It will require proof that the defendant is the controller or “holder” of the Facebook account before the Court can accept it.

18. In this case, service of court documents via social media like Facebook may be adopted but not too readily. There must be proof that the Facebook page in question belonged to the defendant. Conversely, there must be proof that the person who responds to it was in fact the defendant.

19. I come to the conclusion that while the plaintiff says that it is the controller or “holder” of the Facebook account under the alias “Nancy Fines” and that the defendant appeared to have acknowledged the writ when he replied by email, there is no proof that the person who responded was in fact the defendant. The motion will be declined for this reason.

20. Finally, earlier the plaintiff filed a notice of motion on 22^nd August 2019. This motion seeks an order for substituted service of the writ in one of the daily local newspapers pursuant to Order 6, rule 12 of the National Court Rules. At the hearing counsel sought leave to withdraw it. No leave was granted to withdraw it. This means, the notice of motion remains to be determined and having regard to the evidence outlined at [2] above, the evidence establishes that it has been impracticable to locate and serve the writ on the defendant.

21. In the circumstances, there will be an order granting leave to the plaintiff to serve the writ by substituted service in one of the daily newspapers forthwith. Cost shall be in the proceeding.

Ruling and orders accordingly.
________________________________________________________________
In-house Counsel: Lawyers for Plaintiff