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Written by Peter Carter

August 3, 2010

A Queensland court ordered this morning that a defendant be served with a compensation claim by way of SMS message to his mobile phone.
In today’s ruling, Judge Jones of the District Court in Brisbane ordered that sending an SMS message containing the URL of a web page would be sufficient notification. Court proceedings are required to be served personally, ie by handing the documents to a person. However, Carter Capner Law had attempted service at the defendant’s last known residential address only to find the home was unoccupied. Neighbours had no idea of his whereabouts.

The defendant had twice been called via mobile by Carter Capner Law who explained the court claim and asked for his address which he declined to give. The Court was asked to make an order pursuant to UCPR Rule 116 allowing personal service to be substituted by publishing the court proceedings on a private page on Carter Capner Law’s website and sending the web address to the defendant by text message.

In considering whether the order should be made, the Court heard submissions that a text message was far more likely to bring the matter to the defendant’s attention than a newspaper advertisement.

The Court ultimately ordered that substituted service could be effected by publishing the court documents on the website and text messaging the web address to the defendant using a service that records the success or failure of the message reaching the intended recipient.

The actual Txt that the court ruled would substitute for personal service was:-

“You are a Defendant in court action. Go to cartercapner.com.au to see the Amended Claim & Statement of Claim BD5241/2007. You are deemed to be served with these documents 7 days from the date of this message.”

Important factors in the court’s decision were that the defendant had already been made aware of the court proceedings in phone conversations and that personal service had been attempted at the last known address. It was also relevant that the solicitors were able to send the SMS via a service that was able to report the success or failure of the message transmission.

No other means of service were required to be undertaken. This ruling shows that Queensland courts are taking a practical and progressive approach to changes in technology that impact our legal system.

Re Ferguson & Anor, BDC 11/07  Jones DCJ, 03/08/2010 (ex tempore)

Categories: Law practice , Litigation & Law Practice

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