FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Hinckfuss [2025] FCA 823

ORDERS

THE COURT ORDERS THAT:

1.    The requirement for personal service, pursuant to r 8.06 of the Rules, of the following documents on the Respondent be dispensed with:

1.1    the Originating Application filed on 1 November 2024; and

1.2    the Concise Statement filed on 1 November 2024,

(together, the Originating Documents).

2.    Pursuant to r 10.24 of the Federal Court Rules 2011, the Applicant have leave to serve the Originating Documents on the Respondent by way of substituted service as follows:

2.1    emailing the Originating Documents and a copy of these Orders to the Respondent at benjaminhinckfuss@gmail.com;

2.2    emailing the Originating Documents and a copy of these Orders to the Respondent at humanspedia@gmail.com;

2.3    emailing the Originating Documents and a copy of these Orders to the Respondent at benjaminhcharles@gmail.com;

2.4    sending a private message to the Respondent’s mobile telephone number ‘+61404155120’ using the WhatsApp application, stating that “the TPB has commenced proceedings against Benjamin Charles Hinckfuss in the Federal Court of Australia. Sealed copies of the Originating Documents have been emailed to “benjaminhinckfuss@gmail.com”, “humanspedia@gmail.com” and “benjaminhcharles@gmail.com”;

2.5    sending a private message to the Respondent’s mobile telephone number ‘+62819 3109 1218’ using the WhatsApp application, stating that “the TPB has commenced proceedings against Benjamin Charles Hinckfuss in the Federal Court of Australia. Sealed copies of the Originating Documents have been emailed to “benjaminhinckfuss@gmail.com”, “humanspedia@gmail.com” and “benjaminhcharles@gmail.com”;

2.6    sending a private message to the Respondent’s mobile telephone number ‘+62823 4094 8838’ using the WhatsApp application, stating that “the TPB has commenced proceedings against Benjamin Charles Hinckfuss in the Federal Court of Australia. Sealed copies of the Originating Documents have been emailed to “benjaminhinckfuss@gmail.com”, “humanspedia@gmail.com” and “benjaminhcharles@gmail.com”;

2.7    sending a private message to the Respondent’s Facebook account at http://facebook.com/benjamin.hinckfuss.9 stating that “the TPB has commenced proceedings against Benjamin Charles Hinckfuss in the Federal Court of Australia. Sealed copies of the Originating Documents have been emailed to “benjaminhinckfuss@gmail.com”, “humanspedia@gmail.com” and “benjaminhcharles@gmail.com”;

2.8    sending a private message to the Respondent’s Facebook account at https://www.facebook.com/humanspedia.official stating that “the TPB has commenced proceedings against Benjamin Charles Hinckfuss in the Federal Court of Australia. Sealed copies of the Originating Documents have been emailed to “benjaminhinckfuss@gmail.com”, “humanspedia@gmail.com” and “benjaminhcharles@gmail.com”;

2.9    sending a private message to the Respondent’s Instagram account at http://instagram.com/benjaminhcharles stating that “the TPB has commenced proceedings against Benjamin Charles Hinckfuss in the Federal Court of Australia. Sealed copies of the Originating Documents have been emailed to ““benjaminhinckfuss@gmail.com”, “humanspedia@gmail.com” and “benjaminhcharles@gmail.com”;

3.    The Applicant serve the Originating Documents on the Respondent pursuant to the means specified in Order 2 above by 5.00 pm on 4 July 2025.

4.    Service of the Originating Documents be deemed to have been effected on the Respondent immediately once the steps set out in Order 2 above have been undertaken.

5.    The Respondent file a notice of address for service within 28 days after 4 July 2025 (being the date referred to in Order 3 above).

6.    Until such time the Respondent files and serves a notice of address for service or further order, service of any further documents in this proceeding may be effected by the Applicant sending a copy of those documents to the Respondent by email, to the email addresses identified at Orders 2.1, 2.2 and 2.3 above.

7.    Costs be reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

INTRODUCTION

1    The Applicant, the Tax Practitioners Board (TPB), seeks orders ex parte for substituted service pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) (FCR). Subsequent to commencing these proceedings, the TPB discovered that the Respondent, Mr Benjamin Charles Hinckfuss (Mr Hinckfuss), has departed Australia. As such, it now seeks orders for substituted service of its Originating Application and the accompanying concise statement.

2    In essence, to be satisfied that orders for substituted service should be made, the Applicant must establish that:

(1)    it is not practicable to serve a document or documents on the Respondent in a way required by the FCR; and

(2)    in all probability, the mode of substituted service that is proposed by the Applicant will bring the relevant documents to the attention of the party to be served, being the Respondent, Mr Hinckfuss.

3    For the reasons given below, I am satisfied that it is appropriate to make orders for substituted service as sought but as amended, which was canvassed with counsel at the hearing of the application. I will detail those amendments in due course.

BACKGROUND

4    By an Originating Application filed on 31 October 2024, the TPB commenced proceedings against Mr Hinckfuss. The Originating Application seeks various declarations, an injunction, and orders in respect of alleged contraventions of the Tax Agent Services Act 2009 (Cth). The TPB is the regulator and submits that there is a public benefit in these proceedings being continued.

5    The TPB has filed a concise statement in support of the relief claimed. The TPB alleges that Mr Hinckfuss provided tax agent services, other than business activity statement (BAS) services, to clients, and BAS services to one client wherein he charged or received a fee or other award while he was not registered to provide such services as was required under the Tax Agent Services Act. The TPB also alleges that Mr Hinckfuss advertised tax agent services. The matter was listed for a first return date on 3 February 2025. However, that listing was adjourned as the Court was informed that the TPB had not yet affected service on Mr Hinckfuss.

6    On 22 April 2025, the TPB filed an affidavit of a process server who had attempted service on Mr Hinckfuss of the filed Originating Application and the accompanying concise statement (the Originating Documents). The process server attended two addresses but was unable to locate Mr Hinckfuss. The process server also called two mobile phone numbers. On calling the second of those numbers, a person answered the phone as “Benjamin Charles”. The process server asked the person who answered the phone, whether he was Benjamin Charles Hinckfuss, and that person responded that he was. Mr Hinckfuss, relevantly, informed the process server that he had left Australia in October 2024 and did not know when he would be returning. Mr Hinckfuss did not advise the process server whereabouts he was overseas. Mr Hinckfuss provided the process server with an email address of benjaminhinckfuss@gmail.com, where documents could be emailed to him.

7    Also on 22 April 2025, Ms Paolucci, an AGS lawyer (as that term is defined in s 55I of the Judiciary Act 1903 (Cth)) with the Australian Government Solicitor (AGS), provided an affidavit of attempts to serve Mr Hinckfuss and provide him with the Originating Documents, electronically.

8    Relevantly, from the records held by the Australian Taxation Office, there is evidence of mobile telephone numbers of Mr Hinckfuss and two email addresses. Further evidence was given by the AGS lawyer of searches undertaken on social media platforms in relation to Mr Hinckfuss. In addition to that, there is also evidence of the travel movement report from the Department of Immigration and Citizenship of Mr Hinckfuss, which shows that he departed Australia on 30 October 2024 on flight VA83.

9    There is evidence before the Court that flight VA83 is a flight from the Gold Coast airport to Bali Denpasar airport. On the basis of that material, the matter was further adjourned on 23 April 2025 to 27 May 2025, as service had still not been affected. At the TPB’s request, the case management hearing on 27 May 2025 was vacated and listed for hearing on 20 June 2025.

10    At the case management hearing on 23 April 2025, the TPB, by its counsel, advised that consideration was being given to making an application for substituted service.

APPLICATION FOR SUBSTITUTED SERVICE

Relevant Principles

11    Rule 10.24 of the FCR provides as follows:

10.24    Substituted service

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.

Note:    Without notice is defined in the Dictionary.

12    In Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531, Thawley J set out the relevant principles applicable to r 10.24 at [67] to [68], which I gratefully adopt:

67    Rule 10.24 provides that a person may apply for an order if “it is not practicable to serve a document on a person in a way required by these Rules”. In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J observed:

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.

68    In Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] Jackson J said:

In the context of r 10.23(a), the word ‘practicable’ has a wide meaning which will depend on the circumstances of the particular proceeding: Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11]-[15]. Rule 10.23 does not require the applicant to prove the impossibility of service of documents upon a party in accordance with the rules, or that further attempts to effect service in accordance with the rules would be futile or not sensible or feasible: Speedo Holdings BV v Evans [2011] FCA 1089 at [12]. The question is not whether reasonable effort has been shown by the applicant over a particular period, but whether at the date on which the application regarding service is made, the applicant, using reasonable effort, is unable to serve the respondent personally: Foxe v Brown (1984) 58 ALR 542 at 547 as applied in O’Neil v Acott (1988) 59 NTR 1 at 2. Evidence of attempts to serve, attempts to speak by telephone and lack of knowledge of whereabouts will be relevant to the question of practicability: see eg Ross v Cotter [2015] FCA 310 at [2].

13    The TPB is seeking to affect service outside of Australia and in Indonesia. Division 10.4 of the FCR permits service outside Australia. Leave is no longer required to affect such service: The Noco Company v Hong Kong Haowei Technology Co Limited [2023] FCA 533 at [9] to [10] and also see r 10.42 of the FCR.

14    In relation to the application of r 10.42, it was submitted that these proceedings would fall within r 10.42(d)(i), (j)(i) or (p). I accept that submission. Having reviewed the Originating Documents, in this case it would fall within those particular subparagraphs of r 10.42.

15    Furthermore, r 10.49 within Division 10.4 also provides for substituted service within that Division. However, as Moshinsky J observed in Noco at [13], r 10.49 is premised on service by one of the three modes referred to in the rule having been unsuccessful, which implicitly requires that some attempt of service of that kind, has been made. Counsel for the TPB quite rightly brought to the Court’s attention that there have been no attempts to serve this process, by way of the Originating Documents, in Indonesia. Evidence was provided of advice being obtained in relation to affecting service for what was described as domestic proceedings under Indonesian law. That advice also stated that it is less clear in relation to service of documents originating from foreign proceedings. However, and in any event, there is no evidence that the TPB has a physical address, either by way of a residential address or a business address in Indonesia, for Mr Hinckfuss. That is, the TPB does not seek to rely on the application of r 10.49 in the circumstances of this case.

16    The TPB relies on r 10.24 and submits that it has application in the circumstances of this case. I accept that submission. As Moshinsky J explained in Noco with reference to the reasoning of Thawley J in Facebook, by application of r 10.45 in Division 10.4, r 10.24, the general substituted service rule, continues to be available in a case involving service out of the jurisdiction. I gratefully adopt the reasoning of Moshinsky J at [14] to [17] as follows:

14    An issue arises whether, by reason of the presence of a specific rule for substituted service in Div 10.4 (namely, r 10.49) the general rule regarding substituted service (namely, r 10.24) is available in a case involving service out of the jurisdiction.

15      This issue was considered (in the context of the Rules as they stood before the amendments to Div 10.4 described above) in Australian Information Commission v Facebook Inc [2020] FCA 531; 144 ACSR 88 (Facebook). In that case, Thawley J concluded that, having regard to r 10.45 (application of other rules), the general substituted service rule (r 10.24) was available notwithstanding the presence of r 10.49: see Facebook at [62]–[66]. In particular, Thawley J stated at [66]:

This Court has held, in circumstances analogous to the present, that an order for substituted service may be made under either r 10.24 or r 10.49: Cmr of Taxation v Zeitouni (2013) 306 ALR 603 at [60] (Katzmann J); see also: Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J); Commissioner of Taxation v Oswal [2012] FCA 1507 at [32] (Gilmour J). Even if that position is incorrect, I would have ordered substituted service under r 10.49, with a dispensation from the implicit requirement to attempt service under r 1.34, for equivalent reasons to those for which I will order substituted service under r 10.24, explained next.

16      In my view, the reasoning in Facebook is equally applicable under the current provisions. While wording changes have been made to rr 10.45 and 10.49, they remain in substantially the same terms as before the amendments. The current form of r 10.49 has been set out above. The current form of r 10.45 is as follows:

10.45    Application of other rules

The other provisions of this Part apply to service of a document on a person outside Australia in the same way as the provisions apply to service on a person in Australia, to the extent that the provisions are:

(a)    relevant and consistent with this Division; and

(b)    consistent with:

(i)    if a convention applies — the convention; or

(ii)    if the Hague Convention applies — the Hague Convention; or

(iii)    in any other case — the law of the country in which service is to be effected.

17      In my view, the removal of the requirement of leave for service out of the jurisdiction (this being the main change to Div 10.4) does not affect the applicability of the reasoning in Facebook. Accordingly, I consider that the general substituted service rule (r 10.24) is available in a case involving service out of the jurisdiction. Further, consistently with the approach taken in Facebook at [66], if that were not the position, I would have ordered substituted service under r 10.49, with a dispensation from the implicit requirement to attempt service, for equivalent reasons to those set out below for making the order for substituted service under r 10.24.

This Application for Substituted Service

17    On 20 June 2025 at the hearing, I granted leave for the TPB to file the ex parte application for substituted service, the affidavit of Ms Paolucci (the AGS Lawyers) in support of the application, and a written outline of submissions.

18    The first question is whether or not it is practicable to serve a document or documents on the Respondent, Mr Hinckfuss, in a way required by the FCR. The Originating Application (see r 8.01) is accompanied by a concise statement (see r 8.05(1)(b)). Rule 8.06 of the FCR requires that the Originating Documents must be personally served on each respondent named in the originating application. Rule 10.01 provides how service on an individual is to take place. To satisfy the requirement for an order for substituted service, the TPB must satisfy the Court that it is not practicable to serve Mr Hinckfuss as required by the FCR. In accordance with the principles outlined above, that does not require the TPB to demonstrate that there is an inability to affect personal service or that it would be extraordinarily difficult to do so. The current rules require the applicant for orders for substituted service to demonstrate that it is not practicable in the sense that it is not sensible or realistic to affect personal service even though it may be feasible or possible to do so. It does not require the applicant to prove the impossibility of service of documents upon a party in accordance with the FCR. The question is whether, at the date of this application regarding service, the TPB, using reasonable efforts, is unable to serve Mr Hinckfuss personally.

19    The TPB does not have any information of a current physical residential or business address for Mr Hinckfuss in Australia or in Indonesia. Having regard to the evidence before the Court, I am satisfied that it is not practicable to serve Mr Hinckfuss personally with the Originating Documents as required by the FCR.

20    As such, it is necessary to consider the second question. That is, whether in all probability the mode of substituted service that is proposed by the TPB will bring the Originating Documents to the attention of Mr Hinckfuss. This requires that 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. The TPB has provided evidence of many electronic searches undertaken in relation to Mr Hinckfuss, including and noting the aliases that the TPB is aware of, those being additional or assumed names of Mr Hinckfuss. These searches have been undertaken on a variety of different digital platforms.

21    The evidence, which is comprised of various screenshots, shows searches undertaken on Facebook, Instagram and LinkedIn. Those searches show that Mr Hinckfuss does have a social media presence in his own name and using aliases or variations of his name. Furthermore, those searches show that Mr Hinckfuss has an association with another business or businesses described as ‘HumansPedia’, ‘Humans Pedia’, ‘HumansPedia Concierge’ and ‘Jungle Hideaway Villas’. The screenshots show posts on the digital platforms which contain various email addresses and other phone numbers provided as contact details.

22    It appears from those screenshots that these are contact details of Mr Hinckfuss. It is apparent that these Facebook, Instagram and LinkedIn accounts are currently active. The evidence shows that at least in relation to the HumansPedia business, there were current posts (within days of this application being heard) by HumansPedia Concierge. It also apparent from the evidence that Mr Hinckfuss is closely associated with these online and social media accounts. The TPB submits that the proposed form of service covers all known electronic means of communication with Mr Hinckfuss, which include various email addresses, mobile telephone numbers, and messaging through social media accounts and the “WhatsApp” application. As was raised with counsel at the hearing, from the AGS Lawyer’s earlier April affidavit, it does appear that there is an additional email address, being benjaminhcharles@gmail.com, which on the basis of the evidence currently available, has at least not received an undeliverable message and which should also be included in the proposed orders for substituted service.

23    The TPB also submits that Mr Hinckfuss is already aware of these proceedings, having been informed of the proceedings by the process server. I accept that it is likely that on the basis of this evidence, Mr Hinckfuss is already aware of these proceedings.

24    As such, I am satisfied that the proposed methods of substituted service, namely emailing the documents to the three specified email addresses, which will be benjaminhinckfuss@gmail.com, humanspedia@gmail.com and benjaminhcharles@gmail.com, and sending text messages to the identified mobile telephone numbers and private messages to the specified Facebook and Instagram accounts, are likely to bring the Originating Documents to the attention of Mr Hinckfuss.

25    Therefore, I will make orders for substituted service as sought by the TPB with the amendment of including the additional email address.

Associate:    

Dated:    18 July 2025