Judge instead allows substituted service through email, WhatsApp
In a fair work matter, Australia’s Federal Court declined the appellant’s request to issue orders for substituted service as initially proposed, specifically by sending the relevant documents to the lawyers who had represented the respondent in Circuit Court proceedings.
The appellant in Grigorovich v Newsome trading as Envirotech AU [2026] FCA 1549 initiated proceedings against the respondent under the Fair Work Act 2009 (Cth). The Federal Circuit and Family Court of Australia (Division 2) summarily dismissed the proceedings.
The appellant applied for leave to appeal against the decision. He wanted to effect personal service of an application for leave to appeal, a draft notice of appeal, and an affidavit dated 15 July 2026 upon the respondent.
In an interlocutory application, the appellant pursued deemed or substituted service orders. He sought to dispense with personal service, to effect service by sending the documents to the respondent’s lawyers for the Circuit Court case, or to deem service based on the sending of such documents.
In his affidavit, the appellant deposed that the respondent had returned to the UK. The evidence raised the possibilities of service by:
The Federal Court granted substituted service orders specifying efforts to send the respondent the relevant documents via email to his business email address and via WhatsApp messages. The court also granted leave to the extent necessary to send the appellant’s 15 July 2026 affidavit.
The court acknowledged that the respondent was likely in the UK at the time of the sending of the documents. Based on the evidence, the court found that the respondent might not be paying attention to documents relating to his former business since he had ceased all business in Australia.
For most of the documents involved, the court noted that leave was necessary before effecting service on someone outside Australia.
However, the court said service of the originating application outside Australia did not require leave, as the appellant had commenced proceedings concerning events that allegedly happened in Australia in connection with an alleged contravention of an Australian statute.
The Federal Court refused to order deemed service. First, the court could not find that the Australian lawyers who represented the respondent before the Circuit Court continued to represent or communicate with him in the UK since his departure from Australia.
Second, regarding the appellant’s attempts to send the respondent documents by other means, the court pointed out that neither a court order concerning service nor a formal endorsement showing the potential for service in the manner sent accompanied those documents.
In the circumstances, the Federal Court held that issuing substituted service orders requiring the service of those orders with the relevant documents might be appropriate.
The court refused to order substituted service as initially suggested, specifically by sending the pertinent documents to the lawyers who had acted on the respondent’s behalf before the Circuit Court.
However, given the evidence of receipt of communications to the email address and the WhatsApp address and of the respondent’s use of those channels to receive communications for activities subject to the appellant’s claims, the court ordered substituted service by other means.
The court concluded that it was not practicable to serve the respondent either personally or by the Hague Convention.
Here are some other recent decisions by the Federal Court of Australia.
On 10 July 2026, the court dismissed a concert pianist’s claims that the Melbourne Symphony Orchestra took certain adverse actions against him after he made statements in August 2024 that Israel had committed war crimes by targeting journalists in Gaza.
On 18 June 2026, the court declined leave to appeal sought by the Commonwealth Bank of Australia’s former employee, who alleged that she signed a settlement deed under duress, given her unfortunate personal and family circumstances at the time.
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