Wakim v Criniti [2016] NSWSC 1723

Supreme Court New South Wales

Medium Neutral Citation: Wakim v Criniti [2016] NSWSC 1723 Hearing dates: 2 December 2016 Decision date: 05 December 2016 Jurisdiction: Common Law Before: McCallum J Decision: Order for substituted service made Catchwords: PRACTICE AND PROCEDURE – substituted service – proceedings for defamation arising from publications on social media – where defendant unable to be located in person but active on social media Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Simon Wakim (plaintiff) Rima Criniti (defendant) Representation: Counsel: M Richardson (plaintiff)

Solicitors: Kennedys Law File Number(s): 2016/304790

Judgment 1. HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 12 October 2016. The plaintiff has been unable to serve the statement of claim on the defendant and now seeks an order for substituted service. 2. Rule 10.20 of the Uniform Civil Procedure Rules 2005 (NSW) provides that any originating process in proceedings in the Supreme Court must be personally served. However, the Court has power under r 10.14 to direct service of a document by alternative means if the document cannot practicably be served on the person in the manner provided by law. 3. An application for such an order must be supported by an affidavit stating an applicant's knowledge of the whereabouts of the person to be served and a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action arose. 4. The present application is supported by three affidavits setting out the attempts the plaintiff has taken to have the statement of claim served on the defendant personally. In summary, notwithstanding thorough and extensive attempts to locate the defendant physically, those assisting the plaintiff have been unable to do so. The evidence establishes, however, that the defendant is active on social media. In particular, she has recently been active on a Facebook account and an Instagram account. The plaintiff's solicitor has also established a mechanism by which it would be possible to send an email to the defendant's Linked In profile. 5. I am satisfied that the statement of claim cannot practicably be served on the defendant in person. I am further satisfied that the methods of service proposed in the plaintiff's notice of motion filed 1 December 2016 are likely to bring the statement of claim to the notice of the defendant. In that context, I note that the matters complained of in the statement of claim were themselves posted on the defendant's Linked In page and on Facebook. 6. For those reasons, I make order 2 in the notice of motion. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2016