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Sub Service submissions Alice and Shan

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Substituted Service Submissions
Introduction
Alice …May it please the court, my name is HEAZLEWOOD and Shan .. my name is BANNIRCHELVAM.
ALICE SPEAKS
We appear on behalf of the First and Second Plaintiff – Linda Anne Fletcher and Lawrence Alexander
Fletcher.
Your Honour this is an application for substituted service.
We move on the application and rely on the affidavits of:


Process Server: Joel Server – sworn 3 April 2014
Solicitor: Alice Heazlewood – sworn 10 April 2014.
Does Your Honour wish me to read the affidavits onto the record or can I take them as read.
Background
●
Your Honour if it please the court I’ll begin by providing a brief background in this matter:
The Defendant is the owner and driver of a truck, registration 123 WRECKIT. On 22
November 2013 the Defendant was driving his truck in wet conditions and lost control of the
truck and collided with the First and Second Plaintiffs’ property – causing extensive
structural damage to their house and garage.
The Plaintiffs claim the Defendant failed to take reasonable care and drove the truck too
fast, given the weather and road conditions, and failed to brake or swerve the truck to avoid
their property.
On 7 March 2014, on behalf of my firm, Performance Legal Group, I was instructed to send a
letter of demand to the Defendant outlining the damages caused. No response was
received.
On 21 March 2014 I was instructed by the Plaintiffs to file a Statement of Claim against the
Defendant claiming property loss and damage as a result of the Defendant’s actions.
On 21 March 2014 my firm engaged the services of Joel Server, a process server, to effect
service of the Statement of Claim on the Defendant.
Your Honour firstly we submit that despite reasonable attempts personal service in this case
has proved to be impracticable in accordance with rule 10.14.
[Number of reasonable attempts were made by Joel Server (Annexure ) to affect personal service as per
Rule 10.5.
- On 24 and 25 March 2014 Mr Joel Server physically attended Mr Mativeski’s last known address
(12/15 Plain St, Oldton) - he knocked on the door 5 times on each of those occasions and no one
answered the door.
- On 25 March 2014 when he attended the defendant’s last known address a neighbour indicated
that Mr Mativeski’did not reside at the address any longer, had not provided a forwarding address
but did keep in contact with him via his Facespace page.
Mr Server then contacted the letting agent for this address and was told Mr Mativeski’ had left the
premises and had not provided a forwarding address;
- On 25 March he undertook a search of the Telstra White Pages for the surname Mativeski and the
full name Ralph Mativeski and did not find a listing.
- On 25 March he undertook a motor registry search of the registration number of the truck the
defendant owned at the time of the accident and the search showed the defendant’s address is still
listed as12/15 Plain St Oldton.
- He then conducted a search of Facespace which revealed that a Ralph Mativeski does have a
Facespace page and this page is named Ralph Mativeski, the same name as the defendant.]
First, if I may take your honour to the affidavit of Joel Server sworn 3 April 2014. Mr Server has made
a number of reasonable attempts to physically locate the defendant - he was unable to.
I take your honour to para 5 where Mr Server states:
“the defendants neighbour saw me standing on his front door and said ‘Ralph has moved
out of his townhouse in February .. Ralph has not provided me with a forwarding address but
I do remain in contact with him on Facespace”.
Mr Server then states at para 6 that he contacted the letting agent of the Defendant’s last known
address 12/14 Plain St Oldton who stated:
“Mr Mativeski no longer lives at this address, I do not have a forwarding address of Mr
Mativeski.”
Your honour, secondly we submit that there is sufficient evidence to demonstrate that the
defendant is an active facespace user and we submit that substituted service of the statement of
claim via the defendants facespace page would be a practicable and effective method of bringing the
matter to the defendants attention.
We respectfully submit that recent Australian case law permits substituted service through social
networking sites if it can be established that:
- the defendants identity has not been mimicked ( see Citigroup Pty Ltd v Weerakoon (2008) QDC
174)
- it can be shown with real force that the person who created the page is in fact the defendant. (See
MKM Capital Pty Ltd v Corbo & Poyser (2008) unreported judgment of Master Harper from the ACT
District Court).
Your honour, may I hand up those two recent decisions to your honours associate.
SHAN SPEAKS
Your honour we rely upon the case of Poyser - in this particular case, substituted service was
permitted via Facebook, which is an almost identical social networking site to Facespace.
In Poyser, the Court permitted substituted service through Facebook on the basis that the lender's
lawyers were able to match personal identification information about the mortgagees by way of
their Facebook profiles - for example, their birth dates and email addresses.
We respectfully submit that in the present matter we can match the defendants birth date and his
truck registration number.
o
Can I take your Honour, to the affidavit of Alice Heazlewood, sworn 10 April 2014. If your
honour looks at the Police Report, which is annexed and marked “C”, this indicates that the
Defendant’s date of birth is 6 September 1986. Now if your honour compares this to the
Facespace profile page, which is annexed and marked “D”, this also shows that the
Defendant’s birth date is 6 September 1986.
o
Can I now take your honour to the facespace page marked Annexure D which displays
‘123WRECKIT’, which is the registration number of the truck that was involved in the
accident that caused damage to the Plaintiffs’ property. The Police Report also indicates that
the vehicle that was involved in the accident had the registration number ‘123WRECKIT’.
Your Honour, we also rely on the reasoning of Judge Ryrie in the case of Citigroup Pty Ltd v
Weerakon [2008] QDC 174 Judge Ryrie of the Queensland District Court where His Honour stated
that there had to be “real force” to show that the person who created the Facebook profile page
could be identified as the individual in the profile page.
[note: Judge refused an application for substituted service via Facebook. His Honour made the ruling based on
the simplicity of how any random individual can obtain information and create a Facebook profile page]
We therefore respectfully submit that the Facespace page in this case shows “with real force,” that
the person who created this Facespace page is the defendant, Mr Ralph Mativeski and we point
your honour to the facespace updates in annexure D and the police report annexure C where there
is a direct link between the 16 Dec facespace profile update and the court date.
o
Your honour will see that the Police Report marked C highlights that an infringement notice
was issued and the Defendant was required to attend court on 16 December 2013. The
matter concluded with the Defendant being issued a $1500 fine and a two month suspended
licence. The Court attendance date matches the same date of the facespace status update
16 Dec which reads “shi#t day at court today…in my view the garage should have given way
to me…”
o
We further submit, that in addition to the direct link between the 16 December Facespace
profile update and the court date, the Defendant posted another status update on 27
January 2014 writing “1 week to go…longest bl##dy two months of my life”. From the date
of suspension till the 27 January 2014 facespace status update the time lapsed was six
weeks. This is a direct reference to his suspended licence, which the Defendant would be
able to obtain again in mid February.
o
Finally, the status update of the Defendant on 15 February 2014 clearly indicates that this is
the individual who has had a claim brought against him by the Plaintiffs. The 15 February
2014 status reads “Dude with a licence…watch out garages”. The Defendant is clearly
making a reference to himself and the reference to “garages” relates to the accident he had
with the Plaintiffs’ property.
ALICE SPEAKS
Conclusion
Given the evidence at hand and the references that have been made in the status updates, there is
strong evidence to suggest that on the balance of probabilities the owner and operator of the
Facespace profile page is the Defendant.
Your Honour will also note that the most recent status update was on 31 March 2014, which shows
that the Defendant still uses the site.
We therefore submit that an order of substituted service pursuant to UCPR Part 10 rule 14 would
bring the matter to the attention of the Defendant and would be an effective and practicable
method.
If Your Honour has no further questions, that concludes our submissions. May it please the court.
Orders sought in notice of motion
1.
Order to dispense with personal service in accordance with rule 10.14(1) of the Uniform Civil
Procedure Rules 2005 (NSW).
2.
Order for substituted service in accordance with rule 10.14(1) of the Uniform Civil Procedure Rules
2005 (NSW).
3.
Order that the Statement of Claim, attached as a separate file, is also to be sent as a private message
through the process server’s FaceSpace profile page.
4.
Service will be effected within thirty (30) days from service of the Statement of Claim on the
Defendant’s FaceSpace profile page.
5.
Costs in the cause.
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