Daniel Toresen: Serving court notices via Facebook

Daniel Toresen has seen people go to extreme lengths to avoid being served court notices. Photo / Dean Purcell

Opinion

Court dodgers are easier to track down now papers are allowed to be served online.

I started out as a private investigator serving documents all over Auckland, from bankruptcy notices to Family Court documents. Most people are happy to receive the notices and are easy to deal with, but occasionally there are some that just don't want that notice. They will go to extreme lengths to avoid service and make life difficult for the process server.

It is common for these people to move around and sometimes they can be extremely difficult to find. While the standard response to this type of scenario is to apply to the courts for an order for substituted service, we have been receiving instructions to serve via Facebook. The rule of effective service is to bring the notice to the person's attention in an expedient manner. Facebook is now an accepted method to do just 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 - in a timely fashion.

There are a few things that we need to do to prove effective service. We first need to determine conclusively that the Facebook page is that of the defendant or respondent. This can be achieved by examining profile photos and other identifying personal information on the profile. We then must show that the account is active and that there are recent postings and activity such as "likes".

The documents are then privately messaged to the Facebook page owner, and an affidavit or proof of service is prepared.

The first time the New Zealand High Court ruled substituted service could be made on a defendant via Facebook, where newspaper advertising could not be effectively targeted, was in 2009.

The case involved a claim by a company against its minority shareholder for allegedly taking approximately $241,000 from the company's account. The money had apparently been accessed by the defendant via the internet while he was residing in England. It was taken in several separate transactions with the assistance of a second defendant who was able to be served in the ordinary way.

The plaintiff company, however, had difficulties in locating and serving the minority shareholder. It was known that he was living in the UK, but his exact location was unknown. This made the effective targeting of newspaper adverts impossible. The man had corresponded via email and was also known to have a Facebook profile.

In the circumstances, the High Court had little difficulty in ordering that the plaintiff was able to serve its proceedings via Facebook and email in order to prevent the man from avoiding service and frustrating the proceeding.

A change in the law in the United States means ex-partners can serve divorce papers online, including via Facebook. Recently, a Manhattan Supreme Court Justice, Matthew Cooper, gave an applicant permission to serve the defendant with the divorce summons using a private message through Facebook. This transmittal of private Facebook message was repeated by the applicant's lawyers to the respondent once a week for three consecutive weeks or until acknowledged.

Click, you're served. Welcome to the digital age.

Daniel Toresen of Thompson and Toresen Investigations is one of New Zealand's most experienced private investigators. He specialises in all forms of private, business and legal investigations, including personal and domestic matters such as infidelity and childcare investigations, data recovery and forensics, fraud investigations and workplace theft.