Hall v Hemant Investments Pty Ltd [2025] FCA 776

1. This proceeding was commenced on 6 January 2025. In it, the applicants (Mr and Mrs Hall) seek damages, declaratory and other relief in connection with an alleged loan agreement between them and the second respondent (Mr Gavi) for and on behalf of the first respondent (Hemant Investments).
2. Mr Gavi and the third respondent (Kent Lange) are said to be directors of Hemant Investments. Mr Gavi is also the sole director of the fourth respondent (ProAct). Mr and Mrs Hall allege that Mr Gavi and ProAct were their accountants. ProAct went into liquidation on 23 April 2025.
3. To date, Mr and Mrs Hall have not effected personal service of the originating application and statement of claim (originating documents) on Mr Gavi. But on 21 February 2025, a copy of the originating documents was sent to an email address from which Mr Gavi has previously communicated with Mr and Mrs Hall's solicitors (the Email Address). Mr and Mrs Hall seek an order pursuant to r 10.23 of the Federal Court Rules 2011 (Cth) that the originating documents are deemed to have been served by that email.

1. Rule 10.23 of the Rules provides that:

A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if:

(a) it is not practicable to serve a document on the person in a way required by these Rules; and

(b) the party provides evidence that the document has been brought to the attention of the person to be served.

Note Without notice is defined in the Dictionary.

1. Rule 10.23 is one of a number of rules which enable the Court to dispense with the strict requirements for service. Another is r 10.24 which deals with substituted service. Rule 10.23, at least in part, looks to past events, whereas r 10.24 looks to the future: Australian Securities and Investments Commission v China Environment Group Limited [2013] FCA 286 at [15] (Besanko J). In each case, it is a precondition to the exercise of the power that the prescribed method of service is "not practicable".

1. The meaning of "not practicable" must be determined in accordance with the circumstances of the proceeding, including the relief sought and the requirement that litigation be progressed quickly and efficiently: China Environment Group at [12]. As Tamberlin J explained in Ricegrowers Co-Operative Ltd & Seatide Pty Ltd v ABC Containerline NV & MED Containerline Antwerp NV [1996] FCA 1663; (1996) 138 ALR 480 at 482:

The meaning of the expression "practicable" for the purpose of a substituted service application under the corresponding United Kingdom rule was considered by the Court of Appeal in Paragon Group Ltd v Burnell [1991] 2 All ER 388. Lloyd LJ considered that the word "practicable" should be given a wide meaning and that the simple question was whether it was "practicable" to serve by one of the prescribed methods (at 390). The expression "not practicable" is in my view essentially identical in meaning to the term "impractical". In order to establish impracticality some attempt, at least, should be made to effect service in accordance with the rules, or evidence should be led that it is so obviously futile as not to warrant an attempt at service.

(Emphasis added)

1. It is not essential for an applicant to prove that it is impossible or futile to effect personal service: Ford Re Careers Australia Group Limited (in liq) v Mansfield [2022] FCA 173 at [14] (O'Bryan J). It must, however, be demonstrated that it is not sensible or realistic to effect personal service, even though it may be possible or feasible to do so. This will usually be done by taking steps to effect personal service and providing evidence as to any difficulties that have arisen in doing so: Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10] (Colvin J).

"Brought to the attention of the person to be served"

1. The expression "brought to the attention of the person to be served" in r 10.23(b) does not require that the person acknowledge receipt of the document or accord it attention: British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [46] (Dodd-Streeton J). Such a requirement would materially reduce the ambit and efficacy of the provision for deemed service, which is characteristically invoked precisely because service has been evaded or is otherwise difficult: ibid.
2. Where there is evidence of actions, steps and circumstances which, alone or in combination, support, on the balance of probabilities, an inference that the documents have been brought to the relevant person's attention, the requirement in r 10.23(b) will be satisfied: Taleb (No 1) at [50].

1. The evidence establishes that on four occasions between 22 and 31 January 2025, process servers engaged by Mr and Mrs Hall attempted to serve the originating documents on Mr Gavi at his last known residential address in Clayfield, Queensland. The process server attended the residential address at different times: early morning, mid-morning, late afternoon and early evening. On each occasion, the process server was unable to gain a response from anyone inside the residential address.
2. Mr and Mrs Hall's solicitors also twice attempted, on 25 June 2025, to speak with Mr Gavi on his mobile number. That mobile number is known to the solicitors because Mr Gavi has previously called them from it. On each occasion, the telephone call to the mobile number was declined.
3. I am satisfied that it is not practicable to effect personal service of the originating documents on Mr Gavi. There have been four unsuccessful attempts to personally serve Mr Gavi at his residential address. Those efforts, coupled with the declined calls to Mr Gavi's mobile number, demonstrate that while not impossible, it is not realistic that further attempts at personal service will be effective.
4. Mr Gavi did not respond to the email from the solicitors of 21 February 2025 to which I refer above. But on 2 April and 26 June 2025, emails were sent to the Court from the Email Address. Those emails were in relation to the proceedings. The latter email also attached a certificate from a medical centre in Clayfield with respect to Mr Gavi. I am satisfied that this evidence, on the balance of probabilities, supports the inference that the originating documents had been brought to the attention of Mr Gavi.

1. Mr and Mrs Hall also seek an order pursuant to r 10.24 of the Rules that, until such time as Mr Gavi files a notice of address for service or further order, that service may be effected via the Email Address.
2. Rule 10.24 requires that the proposed method of substituted service is one which, in all reasonable probability, if not certainty, will be effective to bring knowledge of the process to the intended recipient: Royal Express Pty Ltd (Recs and Mgrs Apptd) (Admins Apptd) v Huang, Royal Express Pty Ltd (No 3) [2021] FCA 611 at [12] (O'Bryan J). I am satisfied, for the reasons identified immediately above with respect to r 10.23(b), that service upon Mr Gavi by email will have that effect.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.

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