Myers v Medion Australia Pty Ltd

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The Applicant has applied ex parte (in an interlocutory application dated 31 October 2025) for orders permitting him to serve his originating application and supporting documents on the Respondents by email. This application came before me as the general duty judge.
2. For the following reasons, I made orders on 11 November 2025 dispensing with the requirements of personal service and permitting service by email.

1. Proceedings: It appears that the Respondent notified the Applicant on 24 October 2025 that the Respondent is required to network block the Applicant's phone on 26 November 2025, because his device cannot call 000 on at least one Australian network. The Applicant is seeking to restrain the Respondent from doing so. He has filed an originating application and statement of claim, a genuine steps statement, and an affidavit, all dated 31 October 2025. He sees the dispute as turning on the proper construction of the Telecommunications (Emergency Call Service) Determination 2019 (Cth).
2. Applicant email communications with the Respondent: The Applicant stated at the hearing that he has been in email communications with the Respondent, and that he has emailed the Respondent the documents he relies on in the proceeding. After the hearing, he forwarded to chambers those emails. Those emails show that the Respondent has given the Applicant's complaint a "ticket number", and that a Mr Keith Whitelock (Senior Operations Manager) and a Ms Shelley Davis (Head of Customer & Compliance) have sent him emails. Mr Whitelock refers on 7 November 2025 to "documents recently sent to us" by the Applicant, but does not specify which documents.

1. Service of originating application (r 8.06): The Federal Court Rules 2011 (Cth) require that an originating application and documents required to accompany that application be served personally on each respondent (r 8.06). These documents must be served "as soon as practicable and at least 5 days before the first directions hearing or the hearing".
2. Personal service on a corporation (r 10.02): Division 10.1 of the Rules deals with personal service. By r 10.02, a document that is to be served personally on a corporation must be served in accordance with s 109X(1) of the Corporations Act 2001 (Cth). Section 109X(1) provides:

(1) For the purposes of any law, a document may be served on a company by:

(a) leaving it at, or posting it to, the company's registered office; or

(b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

1. That is, the Rules permit documents to be served on companies by posting the documents to the company's registered address. I note that service is not effected at the time it is placed in the post by the party serving the document. In accordance with s 29(1) of the Acts Interpretation Act 1901 (Cth), service is deemed to be effected at the time at which the document would be delivered in the ordinary course of post, unless the contrary is proved: Scope Data Systems Pty Ltd v Goman as Representative of Partnership BDO Nelson Parkhill [2007] NSWSC 278; (2007) 70 NSWLR 176 at [17] (White J).
2. Substituted service (r 10.24): Rule 10.24 of the Rules provides for substituted service as follows:

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a) substituting another method of service; or

(b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c) specifying that the document is taken to have been served:

(i) on the happening of a specified event; or

(ii) at the end of a specified time.

1. In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J described the circumstances in which r 10.24 applies:

The preponderance of authority is to the effect that the current rule requires the applicant for orders for substituted service to demonstrate 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. It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so. Further, there must be a proper evidential basis upon which to conclude that in all probability the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served.

1. Further, the words "not practicable" in r 10.24 should be applied in a way that promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M; General Manager, Fair Work Commission v Asmar (Substituted Service) [2024] FCA 1217 at [7] (Dowling J).
2. Is the usual method of service not practicable? The issue raised by r 10.24 of the Rules is whether service by the usual method (posting documents to the Respondent's registered office) is not "practicable". The Applicant has not attempted to use this method. Instead, he says that he does not have the means to print out his documents (noting that many of the documents are in colour) and pay for postage. The Applicant is unemployed. His documents total 36 pages. He does not know the cost of printing and postage for his documents. The material before the Court does not demonstrate that service by the usual method is not "practicable".
3. Respondent is on notice of application: However, the emails provided by the Applicant do demonstrate that the Respondent is on notice of the Applicant's complaint. Accordingly, there is no prejudice to the Respondent in permitting service to be by way of email, and not insisting on personal service. The deadline of 26 November 2025, when the Respondent says it will block the Applicant's phone, approaches.
4. In these circumstances, I will make an order under r 1.34 of the Rules dispensing with the usual requirement for personal service, and stating that it is sufficient if the Applicant serve the Respondent with his documents by email, by 4pm on 12 November 2025. The Applicant says that he has previously served all the relevant documents on the Respondents, but the emails he provided do not show which documents were served.

1. For these reasons, I will permit the Applicant to serve his originating application and supporting documents on the Respondent by email. The Applicant is directed also to email the Respondent a copy of the Court's orders.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.