Federal Court of Australia

King (Trustee) v Hockings [2026] FCA 311

ORDERS

THE COURT ORDERS THAT:

1.    The requirement for personal service, pursuant to r 8.06 of the Federal Court Rules 2011 (Cth), of the following documents on the respondent be dispensed with:

(a)    The originating application accepted for filing on 12 September 2025;

(b)    The statement of claim accepted for filing on 12 September 2025; and

(c)    The applicant’s genuine steps statement accepted for filing on 12 September 2025,

(collectively, the originating process).

2.    Pursuant to r 10.24 of the Rules, the applicant has leave to serve the originating process, together with a separate sealed copy of these orders dated 23 March 2026 (substituted service order) and a copy of these reasons for judgment, on the respondent by way of substituted service as follows:

(a)    Emailing to the email address referred to in, amongst others, paragraph [8] of the affidavit of Alexander du Maurier affirmed on 8 December 2025 (du Maurier affidavit);

(b)    Posting to the address referred to in, amongst others, paragraph [10] of the du Maurier affidavit;

(c)    Posting to the address referred to in paragraph [17] of the du Maurier affidavit;

(d)    Calling the mobile number referred to in paragraph [17] of the du Maurier affidavit; and

(e)    Sending a text to the mobile number referred to in paragraph [17] of the du Maurier affidavit as follows:

Important court documents for Mr Stephen Hockings have been sent to you via email. You are required to take steps to respond to those legal documents as soon as possible. To discuss, please contact Watson Webb on (02) 8319 4849.

3.    The applicant serve the originating process, substituted service order and judgment on the respondent in compliance with Order 2 above by 4.00pm on 27 March 2026.

4.    Service be deemed to have been effected on the respondent 10 business days after compliance with Orders 2 and 3.

5.    Pursuant to r 10.24 of the Rules, until such time as the respondent files and serves a notice of address for service or further order of the Court, service by the applicant on the respondent of any further documents in this proceeding may be effected by taking each step specified in Order 2.

6.    For the purposes of Order 5, service be deemed to have been effected on the respondent 10 business days after compliance with that order.

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

REASONS FOR JUDGMENT

STELLIOS J:

INTRODUCTION

1    The applicant has commenced proceedings seeking to recover an amount of $95,000 (the funds) from the respondent pursuant to s 129(4A) of the Bankruptcy Act 1966 (Cth). On 3 September 2024, the applicant was appointed under the Act as trustee of the regulated debtor estate of Silvana Liliana Wirepa.

2    By statement of claim accepted for filing on 12 September 2025, the applicant alleges that: (a) on 11 September 2024, Ms Wirepa caused the funds to be transferred from her bank account to the respondent’s bank account; (b) the funds are properly divisible amongst Ms Wirepa’s creditors; (c) the respondent is not, in law, entitled to retain the funds as against the applicant; (d) a notice of demand was issued to the respondent on 14 March 2025 under s 129(4A) of the Act requiring payment of the funds to the applicant; and (e) the respondent has failed to pay the funds to the applicant.

3    Rule 8.06 of the Federal Court Rules 2011 (Cth) requires that the originating application and associated documents be served personally on the respondent in the manner prescribed by r 10.01. The applicant has unsuccessfully attempted to serve the originating application, statement of claim and the applicant’s genuine steps statement (collectively, the originating process) on the respondent.

4    By interlocutory application accepted for filing on 9 December 2025, the applicant seeks an order for deemed service under r 10.23 of the Rules or, in the alternative, an order for substituted service under r 10.24 of the Rules. The interlocutory application is supported by an affidavit affirmed by the applicant’s solicitor, Mr Alexander du Maurier, on 8 December 2025 (du Maurier affidavit).

5    For the following reasons, I am not satisfied that the conditions for an order under r 10.23 of the Rules have been satisfied. However, I am satisfied that an order for substituted service should be made under r 10.24 of the Rules.

Deemed service

6    Rule 10.23 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 two conditions are satisfied:

(1)    “[I]t is not practicable to serve a document on the person in a way required by these Rules”: r 10.23(a); and

(2)    “[T]he party provides evidence that the document has been brought to the attention of the person to be served”: r 10.23(b).

7    The date the applicant proposes to be deemed the date of service of the originating process is the date upon which Mr du Maurier emailed the originating process to the respondent, being 30 September 2025. No attempt was made prior to that date to serve the respondent personally.

8    The email of 30 September 2025 was sent to an email address, which, on the evidence before the Court, is associated with the contact name Dylan James. Neither the email address nor its associated contact name readily corresponds with the respondent’s name (although I acknowledge that the email address includes the name Steve which is a common shortening of the respondent’s first name). However, I am satisfied that the respondent had used that email address when corresponding with the applicant’s firm on 14 March 2025. On that date, a member of the applicant’s firm sent two notices issued under s 77A of the Act to the respondent at that email address. On the same day, the respondent replied with two separate emails: the first included the words “Do not contact me again. … I am not obliged to be in contact with you and will seek legal advice as well as grounds for harassment”. The second email response stated “This is the second letter of harassment received from your company”. I also accept that the respondent listed the email address on an authority to act form he signed with Ms Wirepa on 12 August 2024 in an unrelated proceeding.

9    However, the respondent did not reply to the applicant’s email of 30 September 2025 attaching the originating process. From the bar table, Mr du Maurier informed the Court that neither was there a “bounce back” reply that the email was undeliverable.

10    From there, on 7 October 2025, the applicant’s solicitor instructed a process server (Polo CPI) to effect personal service of the originating process on the respondent at the address listed on the respondent’s expired but last known driver’s licence. Polo CPI reported that, on 13 October 2025, an attempt at personal service on the respondent at that address (Toms Creek property) was unsuccessful. Polo CPI also reported that they spoke with Ms Wirepa at the Toms Creek property who advised that: (a) the respondent had not been at the Toms Creek property for approximately four months; and (b) she did not know of the respondent’s whereabouts or contact details. There is no evidence that the process server left the originating process with Ms Wirepa or asked her to bring it to the respondent’s attention.

11    Further attempts to locate an address for the respondent have been unsuccessful. First, on 20 October 2025, Mr du Maurier requested that Polo CPI make enquiries about whether the respondent resided at a Queensland caravan park. From the bar table, Mr du Maurier explained that Ms Wirepa’s bankruptcy arose from costs orders made in proceedings in the District Court of New South Wales. In those proceedings, Mr du Maurier acted against Ms Wirepa. Mr du Maurier’s client in those proceedings had informed him around 20 October 2025 that a post on Facebook suggested that the respondent was at a Queensland caravan park. In its report of 23 October 2025, Polo CPI indicated that they spoke with an employee at the Queensland caravan park who advised that no one with the respondent’s name resided or worked there.

12    Secondly, Polo CPI were instructed to prepare a skip trace report. On 13 November 2025, Polo CPI reported that they were unable to confirm an address for the respondent. The skip trace report confirmed that the respondent’s last known address was the Toms Creek property.

13    For the condition in r 10.23(b) of the Rules to be met, I only need to be satisfied that the originating process has been brought to the respondent’s attention, not that he “accorded it attention or acknowledged” receipt: British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [46] (Dodds-Streeton J).

14    On the evidence and information before me, I am not satisfied that an inference can be drawn that the originating process has been brought to the respondent’s attention. No attempt was made to personally serve the respondent prior to the email of 30 September 2025. The later attempt at personal service on 13 October 2025 was unsuccessful and, as I have said, there is no evidence that the originating process was left with Ms Wirepa or that she was asked to bring it to the respondent’s attention. No other attempts at service have been made.

15    To support their submission that r 10.23(b) of the Rules has been satisfied, the applicant relied exclusively on the basis that: (a) the respondent had used the email address in question to respond to emails from the applicant’s firm on 14 March 2025; and (b) the email address had been listed as the respondent’s email address on an authority to act form signed on 12 August 2024 in an unrelated proceeding.

16    I accept that the evidence establishes that, as at 12 August 2024, the respondent identified the email address in question as the email address at which he could be contacted. I also accept that he was using that email address in the middle of March 2025. The question is whether I am satisfied that the originating process was brought to his attention as a result of the email of 30 September 2025.

17    On the one hand, it is possible that the respondent has received the originating process but has chosen not to reply. That would be consistent with the March 2025 email exchange in which he resisted further communication from the applicant’s firm and the information provided from the bar table that no “bounce back” email was received.

18    On the other hand, there is a gap of six and a half months between the time of the March 2025 email exchange and the email attaching the originating process of 30 September 2025. Consequently, there is uncertainty as to whether the respondent still had access to the email account at the time the originating process was emailed in September 2025, or whether he has had access to it at any time since. By this time, the evidence is that Ms Wirepa said that the respondent had not been at the Toms Creek property for approximately four months and that she did not know of his whereabouts. There is no other evidence of where he resided in September 2025 or where he has resided since that time. The skip trace report and enquiries at the Queensland caravan park produced no fruitful outcome. It cannot be assumed that, wherever he is or has been, he would have regular access to email or the internet. Furthermore, it is curious that the email address in question presents as associated with an entirely different name (Dylan James) and there is no evidence to explain why that might be the case.

19    There being no other basis relied on to contend that the originating process has been brought to the respondent’s attention, I am not satisfied that an inference can be drawn from the evidence before me to support that conclusion. Accordingly, I am not prepared to grant the applicant’s application for a deemed service order under r 10.23 of the Rules.

Substituted service

20    In the alternative, the applicant seeks an order under r 10.24 of the Rules that, in lieu of personal service, service of the originating process on the respondent be effected by:

(1)    Emailing to the email address referred to in the du Maurier affidavit;

(2)    Posting to the Toms Creek property address;

(3)    Posting to the address listed by the respondent on an authority to act form he signed with Ms Wirepa in an unrelated proceeding referred to in the du Maurier affidavit (Long Flat postal address);

(4)    Calling the mobile number referred to in the du Maurier affidavit, being the respondent’s last known mobile number; and

(5)    Sending a text to the mobile number referred to in the du Maurier affidavit as follows:

Important court documents for Mr Stephen Hockings have been sent to you via email. You are required to take steps to respond to those legal documents as soon as possible. To discuss, please contact Watson Webb on (02) 8319 4849.

21    The applicant also seeks an order that service on the respondent of the originating process be deemed to have been effected one business day after compliance with the methods of service identified in paragraph [20]; an order that the substituted service order be served on the respondent using the same methods; and an order keeping the substituted service order afoot until the respondent files a notice of address for service.

22    The reasons for the first two of the proposed substituted service methods is readily identifiable from what has been said above. The reasons for the other proposed methods are that the Long Flat postal address and the mobile phone number were listed on the authority to act form signed by the respondent on 12 August 2024 in an unrelated proceeding.

23    To make an order under r 10.24 of the Rules, I must be satisfied that “it is not practicable to serve a document on a person in a way required by these Rules”. The condition that service be “not practicable” is expressed in substantively the same terms as between rr 10.23 and 10.24 of the Rules.

24    The relevant principles were summarised by Thawley J in Australian Information Commission v Facebook Inc [2020] FCA 531; 144 ACSR 88 at [67]–[68]:

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.

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] HCA 69; (1984) 58 ALR 542 at 547 as applied in O'Neil v Acott [1988] NTSC 68; (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].

25    See also O’Kearney (Trustee) v Capell (Bankrupt), in the matter of Capell (Bankrupt) [2026] FCA 175 at [18]-[20] (Wheatley J).

26    Given the circumstances, I accept that it is not sensible or realistic for the respondent to effect personal service on the respondent. The applicant has attempted personal service at the Toms Creek property, has sought to effect service using his last known email address, has engaged Polo CPI to conduct a skip trace report, and has sought to act on a tip that the respondent was residing at a Queensland caravan park. There is no evidence that the applicant has sought to contact the respondent using the mobile phone number or the Long Flat postal address. However, given the attempts to locate him and that there is no evidence of the respondent’s whereabouts, I accept that the applicant has used reasonable efforts to serve the respondent personally.

27    I must also be satisfied that, in all probability, the mode of substituted service proposed will bring the relevant documents to the attention of the party to be served. As Halley J said in DHI22 v Qatar Airways Group QCSC [2023] FCA 616 at [23], “[t]he Court is more likely to exercise its discretion and make an order for substituted service if it can be ‘reasonably satisfied’ that the method of substituted service will bring the documents to the attention to the party to be served” (citation omitted).

28    On balance, I am reasonably satisfied that the proposed methods of substituted service will bring the documents to the respondent’s attention. The evidence before me provides a proper basis for drawing that inference:

(1)    The email address, the mobile phone number and the Long Flat postal address were listed on the authority to act form signed by the respondent on 12 August 2024. If the respondent has ongoing access to one or more of those modes of contact, and he is simply seeking to evade personal service, then service through all three modes is likely to bring the originating process to his attention. If, however, the respondent does not have regular ongoing access to one or more of those modes of contact, then effecting service using all of the proposed modes increases the prospect that the originating process will be brought to his attention.

(2)    While there is no evidence of the current status of the relationship between the respondent and Ms Wirepa, the evidence of the past authority to act form the respondent signed with Ms Wirepa, when combined with the alleged payment of $95,000 by Ms Wirepa to the respondent, suggests that the relationship has been a close one that is likely to present ongoing opportunities for contact. There is a clear inference from the evidence that the respondent has had contact with Ms Wirepa. In the email exchange of 14 March 2025, the respondent states that he believes Ms Wirepa is seeking legal assistance. While Ms Wirepa told Polo CPI at the Toms Creek property that the respondent had not been at that address for approximately four months, and that she did not know of his whereabouts or contact details, she did not state that the respondent has ceased communication with her. There is a reasonable inference on the evidence before the Court on this interlocutory application that Ms Wirepa has ongoing communication with the respondent and that service of the originating process by post to the Toms Creek property is likely to bring it to the respondent’s attention via Ms Wirepa.

29    I am satisfied that the multiple pathways of service proposed in the substituted service order, when viewed together, will in all probability bring the originating process to the respondent’s attention.

Conclusion

30    Accordingly, I am satisfied that a substituted service order should be made under r 10.24 of the Rules, and that these orders should be served on the respondent using the same substituted service methods. I am also satisfied that it is practical to maintain these substituted service arrangements until such time as the respondent files a notice of address for service or further order of the Court. I also order that the requirement for personal service of the originating process be dispensed with.

31    In respect of the applicant’s submission that substituted service be deemed effective one business day after compliance with the substituted service order, I do not consider one business day to be an appropriate period for the substituted service to take effect. Instead, I order that the substituted service be effective 10 business days following the completion of the steps in the substituted service order. The same 10 business day period should apply for future service of other documents until such time as the respondent files and serves a notice of address for service or further order of the Court.

Associate:

Dated:    23 March 2026