Federal Court of Australia

Emmott v Wilson, in the matter of Wilson [2026] FCA 810

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the respondent to review Order 3 of the orders made by a registrar of this Court on 22 January 2026 (Substituted Service Order) out of time.

2.    The Substituted Service Order be set aside.

3.    Pursuant to r 10.23 or alternatively r 10.48 of the Federal Court Rules 2011 (Cth), the Bankruptcy Notice No BN280728 be taken to have been served on the respondent, Michael Earl Wilson, on 4 February 2026.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    Michael Earl Wilson seeks leave for a review out of time of the orders made by a Registrar of this Court, including an order for substituted service of a bankruptcy notice issued by the Official Receiver on 16 October 2025 at the request of the John Forster Emmott (Substituted Service Order).

2    In addition to seeking leave out of time for a review of the orders made by the Registrar, Mr Wilson seeks an order pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that the orders made by the Registrar be “rescinded, vacated and set aside” and an order for indemnity costs (Review Application). The Review Application seeks a review of orders allegedly made by the Registrar on 21 and 22 January 2026, but Mr Wilson was not able to identify any relevant orders made by the Registrar on 21 January 2026.

3    Mr Wilson relies on five affidavits that he has sworn, and an affidavit sworn by Yermek Aubakirov, an employed solicitor of Michael Wilson & Partners Ltd (MWP), a law firm located in Kazakhstan. Mr Wilson describes himself in his affidavit dated 20 March 2026 as the “Head of the Branch of MWP in Kazakhstan, and also the Head of the Representative Office of MWP in Azerbaijan, as well as MWP’s presences in Uzbekistan and Kyrgyzstan”.

4    Mr Emmott opposes the Review Application on the grounds that (a) the Substituted Service Order was regularly and properly made, and (b) leave to review the Substituted Service Order out of time should be refused. He seeks an order that the Review Application be dismissed and, in the alternative, an order pursuant to r 10.23 or r 10.48 of the Federal Court Rules (Cth) (Rules) that the bankruptcy notice be taken to have been served on Mr Wilson on 4 February 2026 (Deemed Service Application).

5    Mr Emmott relies on three affidavits sworn by his solicitor, Peter Duggan, of Duggan Legal, in opposition to Review Application and in support of the Deemed Service Application.

6    For the following reasons, I have concluded that leave to review the Substituted Service Order out of time should be granted, the Substituted Service Order should be set aside and an order for deemed service of the bankruptcy notice sought by Mr Emmott under the Deemed Service Application should be made.

B.     Background

7    On 5 December 2025, Mr Emmott applied for orders that the service of the bankruptcy notice may be effected upon Mr Wilson out of Australia and in Kazakhstan, and that service of the bankruptcy notice may be effected by scanning and sending it by email to Mr Wilson at three email addresses.

8    On 22 January 2026, a Registrar of this Court made the following orders:

(1)     Pursuant to s.40(1)(g) Bankruptcy Act 1966 (Cth), the Applicant have leave to serve Bankruptcy Notice BN280728 issued 16 October 2025 (“the Bankruptcy Notice”) upon the Respondent, Michael Earl Wilson, elsewhere than in Australia, namely, in the jurisdiction of Kazakhstan.

(2)    The Official Receiver amend paragraph [1] of the Bankruptcy Notice by deleting the words “21 days after service on you of the Bankruptcy Notice” and replacing them with “18 March 2026”.

(3)    The Bankruptcy Notice be served as follows:

(1)     by emailing the following documents (collectively, the Documents) in PDF to the Respondent at michael.wilson@mwp.kz; Secretaries@mwp.kz; and yermek.aubakirov@mwp.kz:

(a)     a covering letter;

(b)     a sealed copy of this order;

(c)     the Bankruptcy Notice as amended; and

(d)    a copy of any authorisation of the Official Receiver extending the time for service of the bankruptcy notice.

(4)    Service of the Bankruptcy Notice be deemed to be effected on 18 March 2026 upon condition that the event referred to in paragraph 3 occur by 4 February 2026.

(5)    The costs of this application, including any costs of the amendment of the Bankruptcy Notice, be costs incidental to any petition based on non-compliance with the notice.

(6)     Liberty to apply.

(Emphasis in original.)

9    For present purposes, the relevant order made by the Registrar on 22 January 2026 is Order 3, which is the Substituted Service Order. Mr Wilson’s submissions and evidence were relevantly confined to the Substituted Service Order. I have therefore proceeded on the basis that the Substituted Service Order is the order that Mr Wilson seeks to have set aside in the Review Application, and it is that order which is the subject of these reasons.

10    On 4 February 2026, the bankruptcy notice, as amended, was emailed to Mr Wilson by Mr Duggan, the solicitor for Mr Emmott, in accordance with the Substituted Service Order.

11    On 7 March 2026, Mr Wilson sent an email to Mr Duggan, to which was attached a copy of Mr Duggan’s email to Mr Wilson dated 4 February 2026 in turn attaching a sealed copy of the bankruptcy notice, a sealed copy of the orders made by the Registrar on 22 January 2026, including the Substituted Service Order, and Mr Duggan’s covering letter dated 4 February 2026.

C.     Application for Extension of Time

12    On 20 March 2026, Mr Wilson lodged for filing the Review Application.

13    Rule 3.11 of the Rules provides that a party may apply to the Court under s 35A(5) of the Federal Court Act for a review of the exercise of a power of the Court by a registrar and that any such an application must be made within 21 days after the day on which the power was exercised.

14    Rule 1.39 of the Rules, however, provides that the Court may extend a time fixed by the Rules before or after the time expires and whether or not an application for extension is made before the time expires.

15    As noted above, the Substituted Service Order was made on 22 January 2026, and therefore, the Review Application is out of time, having been lodged and accepted for filing more than eight weeks after the Substituted Service Order was made.

16    In paragraph 1 of the Review Application, Mr Wilson seeks a review of the Substituted Service Order “out of time”. By ground 2 of his notice stating grounds of opposition to the Review Application, Mr Emmott contends that leave to review the Substituted Service Order “out of time” ought to be refused.

17    In an analogous case involving an extension of time to seek a review of orders made by a registrar in relation to service of documents on an overseas entity, the principles guiding the exercise of the discretion under r 1.39 of the Rules to grant an extension of time were summarised by Anderson J in Nikolic v Twitter International Company [2025] FCA 345 at [26] in the following terms:

The Court has a broad discretion under r 1.39 of the Rules to extend the times fixed by the Rules. While the discretion is unconfined by any express words, the principal matters that the Court takes into consideration when determining whether to grant an extension of time are:

(a)     the reasons for the delay;

(b)     whether there is an arguable case; and

(c)     prejudice to the respondent or other parties: Hunter Valley Developments Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); Tuscan Capital Partners Pty Ltd v Trading Australia Pty Ltd (in liq), in the matter of Trading Australia Pty Ltd (in liq) [2020] FCA 163 at [16] (Perram J); Deputy Commissioner of Taxation v Australian Investment & Property Corp Pty Ltd [2014] FCA 666 at [8] (Gordon J); Owen-Pearse v Lander Land Co Pty Ltd [2018] FCA 2077 at [16]-[18] (Banks-Smith J).

(Emphasis omitted.)

18    In this case, Mr Wilson has advanced no explanation for the delay in filing the Review Application, and Mr Emmott has not advanced any evidence of prejudice. Nevertheless, I am satisfied, given the absence of any evidence before me of any steps being taken by Mr Emmott to effect service of the bankruptcy notice on Mr Wilson in a way required by the Rules, that Mr Wilson does have an arguable case that the Substituted Service Order, on review, should be set aside. I am therefore satisfied that an order should be made pursuant to r 1.39 of the Rules extending the time for the filing of the Review Application.

D.    Relevant principles

D.1.    Service of bankruptcy notices

19    Section 40(1)(g) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) provides that a debtor commits an act of bankruptcy:

(g)    if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i) where the notice was served in Australia--within the time fixed for compliance with the notice; or

(ii) where the notice was served elsewhere--within the time specified by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counter - claim, set - off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter - claim, set - off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

20    Section 41(2A) of the Bankruptcy Act provides:

(2A)     The notice must specify a period for compliance with the notice. That period must be:

(a)     if the notice is to be served in Australia--the statutory period after the debtor is served with the notice; or

(b)     if the notice is to be served elsewhere--the period specified by the order of the Court giving leave to effect the service.

D.2.    Review of orders made by a registrar

21    Sections 35A(5)-(6) of the Federal Court Act relevantly provide:

Powers of Registrars

…

(5)    A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

(6)    The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

22    In Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [17], the Full Court summarised the principles relating to an application for review of a registrar’s decision under s 35A(5) of the Federal Court Act in the following terms:

The nature of a review under s 104(3) of the Circuit Court Act and under s 35A(6) of the Federal Court Act of an order made by a registrar (often but not always in the context of the review of the making of a sequestration order in bankruptcy) has been the subject of a significant number of decisions of this Court. All are consistent. To underpin the validity of the delegation of judicial power of the Commonwealth to a non-judicial court officer there must be a rehearing de novo before a judge of the Court (whether Circuit Court or Federal Court). The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo…

D.3.    Substituted Service

23    Division 10.2 of the Rules provides for service other than by personal service.

24    Relevantly, r 10.24 provides that if it is “not practicable” to serve a document on a person in a way required by the Rules, then a party may apply to the Court without notice for an order substituting another method of service.

25    Rule 10.24 of the Rules provides:

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.

(Emphasis in original.)

26    While inconvenience is not sufficient for the purposes of r 10.24 of the Rules, it is not necessary for an applicant to prove that it is impossible or futile to effect personal service before an order for substituted service can be made: Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011 at [66] (Katzmann J).

27    Rule 10.49 of the Rules makes specific provision for substituted service outside Australia:

10.49    Substituted service

If service on a person outside Australia, in accordance with a convention, the Hague Convention or the law of a foreign country, was not successful, 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.

28    Although there are conflicting statements in the authorities whether orders for substituted service on persons overseas can be made either under r 10.24 of the Rules, if it can be demonstrated that it is not practicable to serve a document on a person in a way required by these Rules, or under r 10.49, if it can be demonstrated that service on a person outside Australia, in accordance with a convention, the Hague Convention or the law of a foreign country, was not successful.

29    In Park (as trustee of the bankrupt estate of Tschannen) v Tschannen (2016) 341 ALR 452; [2016] FCA 137 at [11], Edelman J stated that as a matter of principle, general rules of substituted service such as r 10.24 of the Rules are concerned with service within the jurisdiction and do not extend to service out of the jurisdiction. His Honour considered that the principle may well explain the need for the existence of specific rules for substituted service out of the jurisdiction, such as r 10.49 and different modes of service such as the Hague Convention.

30    On the other hand, in a number of decisions orders for substituted service have been made on overseas persons or entities on the basis that orders can be made under r 10.24 of the Rules: Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [32] (O’Bryan J) citing Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 at [6]-[7] (Allsop J); Commissioner of Taxation v Oswal [2012] FCA 1507 at [32] (Gilmour J); Zeitouni at [60] (Katzmann J); Australian Information Commission v Facebook Inc [2020] FCA 531 at [66] (Thawley J).

31    Given the different requirements to enliven the power to make an order for substituted service, being impracticably for r 10.24 of the Rules and unsuccessful service for r 10.49, and the weight of authority in support of both alternatives being available, I consider the better view is that orders for substituted service on overseas persons and entities may be made under both r 10.24 and r 10.49 of the Rules.

32    Unlike the requirement in r 10.24 that an applicant for substituted service orders demonstrates that service under the Rules is “not practicable”, an applicant for substituted service on an overseas party under r 10.49 must demonstrate that service on a person outside Australia in accordance with a convention, the Hague Convention or the law of a foreign country was “not successful”. The distinction was highlighted by Edelman J in Park at [15]-[16]:

The difficulty with the orders sought for substituted service in this case is that r 10.49 requires that some attempt will have been made for service in accordance with the relevant Convention. It provides “if service was not successful on a person in a foreign country”. The concept of a lack of success involves, at least, some attempt. This contrasts with the general provision in r 10.24 for substituted service which permits substituted service if “it is not practicable to serve a document on a person in a way required by these Rules” (emphasis added).

One reason why r 10.49 requires that steps have been taken to attempt service is principles of international comity. It would not be consistent with comity for an agreed regime to provide for a form of service outside the jurisdiction if the laws of that jurisdiction permitted a party immediately to substitute an alternative form of service. As Dixon CJ, Williams and Webb JJ remarked, if the position were otherwise, “the strict conditions regulating and limiting service out of the jurisdiction upon defendants abroad would be ineffective; for they could be avoided by obtaining an order for substituted service within the jurisdiction”: Laurie v Carroll [1958] HCA 4 ; (1958) 98 CLR 310, 325. Another reason is the importance of personal service and the need for some reason to exist before orders are made for departure from it. As the High Court observed at 323 in Laurie, service was historically closely associated with jurisdiction and it had been assumed that the foundation of jurisdiction was physical power. That historical foundation is one of the reasons for the importance of personal service. The other is its foundations in natural justice.

33    The bankruptcy trustee in Park had established that the person on whom it was sought to serve documents, including a summons for examination, was located in Thailand but the trustee had not taken any steps to attempt personal service under the any of the methods provide in the relevant convention entered into between Australia and Thailand being the Agreement on Judicial Assistance in Civil and Commercial Matters and Co-operation in Arbitration between Australia and the Kingdom of Thailand, Australia–Thailand, signed 2 October 1997, [1998] ATS 18 (entered into force 29 July 1998). His Honour concluded that an order for substituted service should not be made in the absence of any evidence that any attempt has been made for personal service under any of those methods. His Honour stated at [18]:

In reaching this conclusion, I have also considered whether a power might be exercised under r 1.34 to dispense with compliance with the implied requirement in r 10.49 that an attempt be made at service. I proceed on the basis that there might be instances where the power in r 1.34 could be exercised: see Deputy Commissioner of Taxation v McManus [2015] FCA 959 [13] (Pagone J). But, for the reasons I have explained, those instances are likely to be rare. One rare example might be a case where there is real urgency for service and where the evidence suggests an impossibility or serious impracticability in service by the means contemplated in the Convention. This is not such a case, even taking into account the need for the Trustee to commence the bankruptcy process and the commencement, but current delay, in the public examination.

34    The potential application of the dispensation power in r 1.34 of the Rules and the making of an order for substituted service outside Australia under r 10.49 was more recently considered by O’Bryan J in Ford at [32], where his Honour stated that if it were considered that service outside Australia under r 10.24 was not available because of inconsistency with r 10.49, it would follow that:

… the Court would have power to make an order for substituted service under r 10.49 in equivalent circumstances by exercising power under r 1.34 to dispense with the requirement that personal service be attempted before substituted service can be effected: see, for example AIC v Facebook at [66]; Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 (Connelly) at [72]-[74] per Downes J. In Park (at [18]), Edelman J considered that, while there may be instances where the power in r 1.34 could be exercised to dispense with the requirement under r 10.49 for personal service to be attempted, such instances are likely to be rare.

(Emphasis in original.)

E.    Should the Substituted Service Order be set aside?

E.1.    Considerations other than impracticability of service

35    Mr Wilson advances the following general submissions in support of his contention that the Substituted Service Order should be set aside:

(a)    the authorities relied upon by Mr Emmott are not applicable because Mr Emmott is located in Kazakhstan and is aware of the laws of Kazakhstan governing the service of court documents;

(b)    Mr Wilson submits that service of foreign court documents by email in Kazakhstan is not permissible under the laws of Kazakhstan;

(c)    Mr Wilson submits that the Substituted Service Order should not have been made because of the unreliability of Mr Duggan’s emails.

36    I do not accept these submissions made by Mr Wilson for the following reasons.

37    First, there is no cogent evidence before the Court from which it could be concluded that at the time the Substituted Service Order was made, Mr Emmott was in fact present in Kazakhstan. The evidence as to Mr Emmott’s location at the time of the making of the Substituted Service Order does not rise higher than an assertion made by Mr Wilson in his affidavit of 7 May 2026 that Mr Emmott “works and practices as a lawyer in Kazakhstan on a full-time basis, on his own case and claims to have done so since 2001”. There was no evidence before me of any such claim by Mr Emmott and I note that Mr Emmott’s address on the bankruptcy notice is recorded as “10 The Courtyard, Sheffield Park, East Sussex, United Kingdom”. Mr Wilson claimed in the course of his oral submissions that Mr Emmott “has a house 50 metres away” from Mr Wilson’s office and “I see him drinking in the pub every day” but there was no evidence to substantiate these claims.

38    Second, the only evidence that service by email of foreign court documents in Kazakhstan is not permissible were unsubstantiated assertions to that effect by Mr Wilson and his fellow employed solicitor, Mr Aubakirov. While select extractions of laws and codes are cited by Mr Wilson or Mr Aubakirov in purported support of these assertions, including the Civil Code of the Republic of Kazakhstan, Civil Procedural Code, Law of Languages of Kazakhstan and the Law on Kazakhstan joining the Hague Convention, none of those extracts establish that service of foreign court documents on persons by email in Kazakhstan is contrary to any law of Kazakhstan. In the absence of any evidence of specific laws or regulations of Kazakhstan prohibiting the service of foreign legal documents on persons in Kazakhstan independent I do not accept Mr Wilson and Mr Aubakirov’s evidence that service by email in Kazakhstan of foreign court documents is contrary to the laws of Kazakhstan.

39    Mr Wilson claims in his affidavit sworn on 19 May 2026 that:

“.. since 2025 to date there has often been, continue to be and are very real, serious and considerable problems with the email and systems (such as they are) of Mr Duggan for the Judgment Debtor, who works from home, has not IT systems, no IT servers and no IT and other staff.

40    Third, even assuming that Mr Emmott’s solicitor, Mr Duggan, had experienced “real, serious and considerable problems” with his email systems, it does not logically follow that it might provide a compelling or plausible reason why an order for substituted service by email should not be made. If Mr Duggan had experienced any particular difficulty with serving the bankruptcy notice on Mr Emmott by email it could readily be inferred that he would use an alternative email system. There was no stipulation or other requirement to the effect that the service by email of the bankruptcy notice on Mr Emmott had to be sent from Mr Duggan’s email address. Of course, had there been a known question mark over the capability or reliability of Mr Wilson’s email systems, rather than those of Mr Emmott, the position would have been very different.

41    Mr Wilson otherwise makes submissions that might well be relevant to challenges that he may wish to make to the bankruptcy notice, including the absence of any alleged indebtedness and alleged fraud on the part of Mr Emmott, but are not relevant to a hearing de novo of a decision by a registrar to make orders for substituted service.

E.2.    Was service of the bankruptcy notice not practicable?

42    Mr Wilson submits that the Substituted Service Order should not have been made because Mr Emmott has not established that it was not practicable to effect personal service on him.

43    Establishing that service of the bankruptcy notice on Mr Wilson in Kazakhstan was not practicable is a necessary requirement to obtain an order for substituted service under r 10.24 of the Rules. It is also indirectly relevant to an order for substituted service under r 10.49 because it informs the exercise of the Court’s discretion as the rule is in substance directed at the objective reasonableness of the attempt to effect service in accordance with a convention, the Hague Convention or the law of a foreign country. Further, in the absence of any attempt to effect service in the required ways, any exercise of the Court’s discretion under r 1.34 of the Rules to waive the requirement to make an attempt to effect service must similarly be informed by the extent to which an attempt at service would have not been practicable.

44    It is therefore convenient to deal with the issue of whether service of the bankruptcy notice was not practicable in addressing whether substituted service orders should be made under r 10.24 or r 10.49 of the Rules but always bearing in mind the distinction between the necessary elements of the two rules.

45    Mr Wilson’s submissions appear to have been principally directed at impracticably in the context of r 10.49 of the Rules. He submits that there is nothing to suggest that service of the bankruptcy notice under the laws of Kazakhstan or under the Hague Convention would not be practicable. He submits that (a) Mr Emmott has not established that he could not have effected personal service on Mr Wilson in Kazakhstan, (b) any requirement that the bankruptcy notice would have to be translated into the Kazakh language or Russian, given it is only 3 and a half pages in length, would not be burdensome, and (c) any apparent urgency in the time by which the bankruptcy notice had to be served was wholly attributable to the delay by Mr Emmott in seeking orders for substituted service.

46    There is force in Mr Wilson’s submissions. Mr Emmott has not advanced any evidence of any attempts he might have made to serve the bankruptcy notice in a way required under the Rules, or under the laws of Kazakhstan or under the Hague Convention. Nor, other than his address on the bankruptcy notice, has Mr Emmott advanced any evidence of his location at the time that the Substituted Service Order was made or any specific evidence of why service in Kazakhstan would not be practicable.

47    Mr Emmott’s evidence is limited to evidence of the likelihood that service of the bankruptcy notice by email to the nominated email addresses would be likely to bring the bankruptcy notice to Mr Wilson’s attention and that in fact the bankruptcy notice was received by Mr Wilson on 4 February 2026. Evidence of actual receipt of the bankruptcy notice is clearly relevant to whether orders for deemed service might be made, but I do not accept that it is relevant to whether the Substituted Service Order should have been made by the Registrar on 22 January 2026. Necessarily that requires a forward-looking approach, namely, the prospect of it being brought to Mr Wilson’s attention – not a retrospective approach on review of whether it was brought to his attention.

48    The absence of any attempt to effect service in a way required under the Rules on a person overseas, however, is not necessarily fatal to an application for substituted service under r 10.49 of the Rules. Recent cases have increasingly focused on the practical dictates of the efficient administration of justice and the extent to which electronic communications are becoming more ubiquitous, efficient and less costly than methods of service that had originated and been applied in very different factual circumstances.

49    Justice O’Bryan observed in Ford at [33]:

Under s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), the Court’s procedural powers are to be exercised in the way that best promotes the overarching purpose, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Having regard to that requirement, a range of circumstances are likely to bear upon the question whether substituted service outside Australia should be ordered where service under a relevant convention or foreign law has not first been attempted. Those circumstances will include those identified by Edelman J in Park, specifically principles of international comity as well as the importance of personal service in founding jurisdiction. However, recognition should also be given to the radical changes that have occurred in the last 20 years in every day methods of communication, whereby the vast majority of communication occur electronically by email or similar methods. In my view, in considering an application for substituted service outside of the jurisdiction, a Court should take into account factors including: the subject matter of the proceeding (particularly whether it involves business or commercial matters) and the nature of its connection to Australia; the difficulties and cost associated with attempting to serve the defendant outside Australia in accordance with r 10.43; the urgency of service; the nature of the defendant’s connection to Australia in the context of the proceeding and the defendant’s facility with the English language; and the likelihood that the method of substituted service will bring the documents to the attention of the defendant.

(Emphasis in original.)

50    These statements of principle have since been applied in Shield Holdings Australia Pty Ltd (in liq) v Binetter [2025] FCA 451 at [40] (Halley J); Morrell v Sundance Marine Pty Ltd (Substituted Service) [2026] FCA 304 at [20] (Hill J).

51    In this case, the obstacle to making an order for substituted service of the bankruptcy notice pursuant to r 10.49 of the Rules is that Mr Emmott had not made any attempt to serve the bankruptcy notice on Mr Wilson under the Hague Convention or the laws of Kazakhstan at the time that the Substituted Service Order was made. It follows that unless the requirement to attempt service was dispensed with pursuant to r 1.34 of the Rules, an order for substituted service could not have been made under r 10.49.

52    The bankruptcy notice has a strong connection to Australia. It is a bankruptcy notice that was issued pursuant to a judgment in the Court of Appeal of the Supreme Court of the Australian Capital Territory on 23 January 2025. Other factors identified by O’Bryan J in Ford also tell in favour of making orders for substituted service under r 10.24 or under r 10.49 of the Rules (with an order under r 1.34 dispensing with the requirement to effect service in the case of an order under r 10.49). These factors include the relative urgency of service, given the requirement for the bankruptcy notice to be served within six months of it being issued on 16 October 2025, the nature of Mr Wilson’s connection to Australia in the context of the proceeding, Mr Wilson’s facility with the English language, and the likelihood that the method of substituted service will bring the documents to Mr Wilson’s attention, given (a) Mr Duggan’s unchallenged evidence that he had received over a thousand emails from Mr Wilson at the email address for substituted service, the subject of the Substituted Service Order, and (b) Mr Wilson’s own evidence that he has received the bankruptcy notice from Mr Duggan on 4 February 2026 via email.

53    Nevertheless, Mr Emmott has not adduced any evidence as to the specific difficulties and costs associated with attempting to serve Mr Wilson outside Australia in Kazakhstan under the Hague Convention or the laws of Kazakhstan.

54    I do not accept that impracticability can be demonstrated by simply pointing to the fact that a person may be located in a foreign country. In this case, Mr Emmott did not provide any evidence of his own location at the time that the Substituted Service Order was made, any knowledge he may have had of the personal address of Mr Wilson in Kazakhstan, any attempts he may have made to effect service under the Hague Convention or the laws of Kazakhstan, and the practical difficulties that any specific provisions of the law of Kazakhstan may have created for service of the bankruptcy notice on Mr Wilson.

55    Nor do I accept that an order under r 1.34 of the Rules dispensing with the requirement to attempt personal service for the purposes of r 10.49 should be made in the absence of any evidence of the practical difficulties of service under the Hague Convention of the laws of Kazakhstan. As a general proposition, orders dispensing with the Rules should only be made in the clearest of circumstances and based on evidence – not contentions unsupported by evidence of material difficulties with compliance.

F.    Should orders for deemed service be made?

F.1.    Relevant principles

56    Rules 10.23 and 10.48 of the Rules provide that a party may apply to the Court for an order for deemed service of a document.

57    Rule 10.23 of the Rues provides:

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.

58    Rule 10.48 of the Rules makes the following specific provision for deemed service of documents outside Australia:

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 the day mentioned in the order, if:

(a)    it is not practicable to serve the document on the person outside Australia in accordance with a convention, the Hague Convention or the law of the country in which the person resides; and

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

59    The word “practicable” has been held to have a wide meaning in the context of r 10.23 and r 10.48 of the Rules, a meaning that depends on the circumstances relevant to the particular proceeding, including the relief sought and the requirements that litigation be progressed quickly and efficiently: Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] (Jackson J), citing Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11]-[15]; Haire v WorkCo Australia Pty Ltd [2024] FCA 668 at [30] (Horan J).

60    Further guidance as the meaning of “practicable” has been provided by Jackson J in Kosmos Capital and by Foster J in Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047.

61    In Kosmos Capital, Jackson J observed at [50]:

…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 B.V. 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 at [16]; (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].

62    In Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047, Foster J stated at [148]:

The cases to which I have referred support the proposition that, in order to prove that service is impracticable, an applicant is not required to prove that it is impossible or futile to effect service as required. In addition, in the context of r 10.48 FCR, an applicant for relief under that rule is not required to undertake service in accordance with the strict requirements of the relevant law before seeking relief pursuant to r 10.48. It should also be remembered that, although mere inconvenience may not be enough to constitute “impracticability”, r 10.48 FCR is intended to ameliorate the stultification of cases against foreign defendants caused by an unduly cumbersome and uncertain set of requirements governing service of this Court’s process in a foreign country. In my judgment, once this court is satisfied that its process and other documents have come to the attention of the foreign defendants, it should not hesitate to deem service to have been effective if there is any suggestion that the law of the relevant foreign country as to service will unreasonably delay or even frustrate the progress of the proceeding.

F.2.    An order for deemed service should be made

63    Impracticability of service is also a relevant consideration for making an order for deemed service pursuant to r 10.23 or r 10.48 of the Rules but, unlike in the context of the orders for substituted service, evidence that a document has been brought to the attention of the person to be served is a further and significant consideration. Satisfaction of the requirement to establish impracticably of service for orders for deemed service, particularly in light of the overarching principles that litigation in this Court be conducted quickly and efficiently, may well be less stringent when there is compelling evidence that a document has been brought to the attention of the person to be served.

64    I am satisfied that the bankruptcy notice was brought to the attention of Mr Wilson on 4 February 2026.

65    On 7 March 2026, Mr Wilson sent an email to Mr Duggan to which he attached a copy of an email that he had received on 4 February 2026 from Mr Duggan which, in turn, attached a covering letter dated 4 February 2026 from Mr Duggan to Mr Wilson and copies of the orders made by the Registrar, including the Substituted Service Order, and the bankruptcy notice. Mr Wilson did not make any submission or advance any evidence to the effect that Mr Duggan’s 4 February 2026 email and its attachments were not brought to his attention on 4 February 2026. To the contrary, in his oral submissions, Mr Wilson confirmed that he had received the bankruptcy notice by email.

66    In those circumstances, I am more prepared to infer that personal service of Mr Wilson in Kazakhstan or service under the Hague Convention or the laws of Kazakhstan was “not practicable”, in the sense in which that requirement has been interpreted and applied by the Court in considering applications for deemed service in Sanum Investments, Kosmos Capital, China Environment Group and Haire.

67    Consequently, I am satisfied that the orders sought by Mr Emmott in the Deemed Service Application should be made.

G.     Disposition

68    Leave to review the Substituted Service Order out of time is to be granted, the Substituted Service Order is to be set aside and an order for deemed service of the bankruptcy notice on Mr Wilson is to be made.

69    There is to be no order for costs. Mr Wilson was successful with respect to substituted service, but Mr Emmott was successful in obtaining an order for deemed service of the bankruptcy notice on Mr Wilson. It is regrettable that so much time and effort has been given to matters that might best be characterised as matters of form – not substance. A greater emphasis by Mr Emmott on impracticability might well have avoided the need to seek in the alternative orders for deemed service, but at the same time, there was always a compelling case for orders for deemed service to be made – an issue that should have been readily apparent to Mr Wilson.

Associate:

Dated:    25 June 2026