Case Note – Flo Rida v Mothership Music Pty Ltd  NSWCA 268 (20 August 2013)
Flo Rida (the appellant in these proceedings) is a well-known rap music artist who was contracted to appear at a music festival in Newcastle, New South Wales on 22 October 2011.
As a consequence failing to appear, Flo Rida and his management agent, Mr Darren Ayre, were sued by the organiser of the festival, Mothership Music Pty Ltd (Mothership).
The primary judgment
On 18 April 2012 the primary Judge, Gibson DCJ, made an order for substituted service of the District Court Statement of Claim, by allowing service of it by email and posting a message regarding it on Facebook. Notwithstanding the order, there was no appearance in the proceedings by either Flo Rida or Mr Ayre and, as a result, on 3 August 2012 judgment was entered against them for $380,400.60 before interest.
In handing down her judgment, Gibson DCJ, referred to prior cases in which service was found to be effective via Facebook, including: Byrne v Howard  FMCAFAM 509 in which Brown FM made an order for substituted service via Facebook and other electronic means including email.
Flo Rida appealed against the judgment on the grounds that an order for substituted service should not have been made against him.
Judgment of the Court of Appeal
In upholding Flo Rida’s appeal, his Honour Macfarlan JA (with whom Ward JA and Gleeson JA agreed) held that:
1 the District Court does not have jurisdiction to make an order under Part 11 of the Uniform Civil Procedure Rules (UCPR), which relates to service of documents outside Australia. That Part is confined in its application to the Supreme Court (UCPR r 11.1; Studorp Ltd v Robinson  NSWCA 382). Therefore the rules relating to substituted service as applicable in the District Court do not allow a plaintiff to overcome a situation where the relevant document cannot lawfully be served because the defendant is outside Australia;
2 in the present matter an order for substituted service should not have been made by Gibson DCJ ‘in the absence of evidence that the means of substituted service sanctioned by the order were likely to bring service of the Statement of Claim to Flo Rida’s attention whilst he was in Australia. Due to the proximity of his departure, there was no basis in the evidence for any confidence that that would occur’ (at ); and
3 the evidence before Gibson DCJ ‘did not in any event constitute a sufficient basis for the making of the substituted service order insofar as that order provided for notice to be given to Flo Rida by means of Facebook. The evidence… did not establish, other than by mere assertion, that the Facebook page was in fact that of Flo Rida and did not prove that a posting on it was likely to come to his attention in a timely fashion’ (at ).
Whilst the Court declined to allow an order for substituted service in this case (due to the lack of evidence that the Facebook notification would bring service of the Statement of Claim to Flo Rida’s attention whilst in Australia) it is interesting to note the Court’s continuing acknowledgment that an individual’s ‘virtual presence’ can, in effect, be a real and recognised means of reaching a person for the service of legal documents, similar to that of a physical address. However, the extent to which such means can be used to effect substituted service may depend on which Court the matter is in and whether the defendant is in Australia. Watch this space…