Federal Court of Australia

Holland v Gillett [2026] FCA 1106

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the applicants’ interlocutory application for default judgment, outline of submissions, and affidavit(s) in support (together, the default judgment application materials), and these orders be served on the respondent by:

(a)    emailing copies to mrawgee@gmail.com and andrew@redpandaproperty.com;

(b)    posting copies, by tracked post, to PO Box 666, Sandy Bay, Tasmania, 7005, 2 Franklin Street, Swansea, Tasmania, 7190, and 30 Marine Terrace, Burnie, Tasmania, 7320; and

(c)    attempting personal service on the respondent at 30 Marine Terrace, Burnie, Tasmania during business hours.

2.    With each method of service identified in orders 1(a), (b) and (c) above, the applicants must include a covering letter or email, as the case may be, stating as follows:

Dear Mr Gillett,

The applicants in Federal Court proceeding TAD11/2025 have filed an interlocutory application seeking default judgment against you for claims made in the originating application and statement of claim filed on 14 April 2025. The Court has ordered that you may be served with the documents that have been filed in support of the default judgment application by sending them by way of tracked post to addresses which they believe are associated with you or Mr Andrew McCullagh, and by emailing them to email addresses which they believe to be yours or Mr McCullagh’s.

Once service has been effected in accordance with the orders, the interlocutory application seeking default judgment against you will be listed for hearing. If you wish to defend the application for default judgment, you must file a notice of address for service in the Federal Court of Australia before that time. If you do not, or you do not attend the interlocutory hearing, judgment may be entered against you, which may include orders that you pay damages to the applicants.

3.    The applicants are to file an affidavit confirming service on the respondent has been effected in accordance with order 1.

4.    Service of the default judgment application materials and these orders is deemed to have been effected on the respondent 14 days after the filing of the affidavit referred to in order 2.

5.    The hearing of the default judgment application listed for 31 August 2026 is vacated.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    On 17 July 2026, the applicants filed an application for default judgment against the respondent, Mr Adam Gillett, pursuant to r 5.23(2)(d) of the Federal Court Rules 2011 (Cth). The application for default judgment was based on the respondent’s failure to serve a defence in accordance with the Rules within the time limited by an order I made on 26 June 2026. That application was accompanied by an outline of submissions and an affidavit (together, the default judgment application materials). The hearing of the default judgment application was listed for 31 August 2026.

2    On 31 July 2026, the applicants lodged an interlocutory application seeking orders for deemed, or alternatively substituted, service. In particular, the applicants sought orders that:

(a)    they are deemed, under r 10.23 of the Rules, to have effected service of the default judgment application materials; further or in the alternative

(b)    they may serve, under r 10.24 of the Rules, the default judgment application materials by substituted means, seven days after which service would be deemed effective.

3    In effect, the applicants are required to establish that:

(a)    it is not practicable to serve documents on Mr Gillett in a way required by the Rules; and

(b)    in all probability, the mode of substituted service that is proposed by the applicants will bring the relevant documents to the attention of Mr Gillett.

4    In support of the application, the applicants filed two affidavits of their solicitor, Mr Jack Tammens, dated 3 February 2026 and 31 July 2026, and an outline of written submissions.

5    As there is no real issue of fact relevant to the determination of the application, the legal arguments could be dealt with adequately by written submissions and the applicants were content with this course, the application was determined without an oral hearing: s 20A of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

6    For the reasons that follow, I am not satisfied that it is appropriate to make the deemed service orders the applicants sought. I am satisfied that it is appropriate to make orders for substituted service of the default judgment application materials on Mr Gillett, though not in the form the applicants sought.

Background

7    On 14 April 2025, the applicants commenced this proceeding against the respondent by originating application and statement of claim. In summary terms, the applicants allege that the respondent, acting as the accountant and financial advisor for the applicants, caused them to enter numerous loans, asset purchase agreements and investment transactions without proper disclosure or advice. The applicants allege the respondent did so in breach of tortious and fiduciary duties of care, misleading and deceptive conduct prohibitions and the parties’ retainer and that they suffered loss or damage as a result of the respondent’s conduct.

8    Between commencing this proceeding and June 2025, the applicants were unable to locate Mr Gillett to effect service. On 26 June 2025, Mr Gillett attended the office of the applicants’ solicitors, having been prompted to do so by Mr Andrew McCullagh. The Court was told that Mr McCullagh is a mutual associate of the first applicant, Mr Holland, and Mr Gillett, and is, or at least was at this time, also a client of the applicants’ solicitors. Mr McCullagh’s regular email address is andrew@redpandaproperty.com.

9    On 3 July 2025, the applicants filed an affidavit of service, stating that Mr Gillett was served with the originating application and statement of claim on 26 June 2025, when he attended the applicants’ solicitors’ office. That affidavit exhibited a copy of the originating documents that had been served on Mr Gillett, and which Mr Gillett evidently had signed upon being served with them.

10    Despite these events, Mr Gillett has not filed a notice of address for service or engaged with the proceeding in the regular way.

11    On 21 July 2025, Mr McCullagh sent an email to the applicants’ solicitors annexing a document entitled “Gillett Response Holland”. The body of the email said:

Here is the DRAFT response for [Mr Gillett]. I will have it properly collated and lodged with Federal Court. Can I suggest mediation is organised asap so the matter can be dealt with.

12    On 28 July 2025, an email was sent to the Registry, copied to the applicants’ solicitors, from the email address mrawgee@gmail.com, which I infer is Mr Gillett’s email address. The email, which did not contain any details regarding the sender, attached a copy of a defence and counterclaim. The first page of the defence contained a footer that noted the respondent’s address for service as PO Box 666 Sandy Bay, Tasmania, 7005 (Sandy Bay Address). According to a Google search undertaken by the applicants’ solicitors, this address is associated with Mr McCullagh, rather than Mr Gillett.

13    Mr Gillett never filed this defence and counterclaim.

14    On 9 October 2025, a first case management hearing was conducted, with the aim of regularising the proceeding. Mr Gillett did not appear. I made orders for mediation, to be conducted by 19 December 2025. The applicants were ordered to serve a copy of the mediation orders on Mr Gillett and obtain confirmation that he had received, and was aware of, the orders.

15    The applicants were unable to comply with the above order as Mr Gillett had not filed a notice of address for service and did not confirm that he had received and was aware of the mediation orders.

16    On 16 February 2026, I heard and determined an interlocutory application for substituted service, which was confined to the mediation orders. In support of that application, the applicants filed evidence, the following three aspects of which are relevant to the present application. First, the location of Mr Gillett was unknown to the applicants; secondly, according to searches undertaken, Mr Gillett did not own any property in Tasmania or interstate; and thirdly, Mr Gillett was not contactable by the email address or phone number previously used by the applicants during the course of their business dealings. On the basis of those and other materials, the first substituted service orders I made were as follows:

(a)    pursuant to r 10.24 of the Rules, the orders for mediation were to be served on Mr Gillett by:

(i)    emailing a copy to Mr Gillett’s email address and Mr McCullagh’s email address; and

(ii)    posting a copy of the orders to the Sandy Bay Address marked to the attention of Mr Gillett; and

(b)    service was deemed to be effected seven days after the applicants filed an affidavit confirming service had been carried out in accordance with the first substituted service orders.

17    On 27 February 2026, the applicants filed an affidavit in compliance with the first substituted service orders. Following service, Mr McCullagh responded to the email sent to his email address stating that Mr McCullagh “will ensure he gets it”, which I take to be a reference to Mr Gillett.

18    In May 2026, a Registrar conducted a virtual mediation. All parties participated in the mediation. I was told that Mr Gillett attended the mediation, supported by Mr McCullagh who was also in attendance. The mediation was unsuccessful.

19    Following the unsuccessful mediation, the Registrar made orders for Mr Gillett to file and serve a defence by 16 June 2026. No defence was filed by that date, or at all.

20    On 18 June 2026, another case management hearing was conducted. Mr Gillett did not appear.

21    However, on 19 June 2026, Mr McCullagh, on behalf of Mr Gillett, sent an email to my Chambers, the Chambers of the Registrar who conducted the mediation, and the Registry, copied to Mr Gillett’s email address. The email attached the following documents: a defence, a “notice of address for service”, a cross-claim, an application to extend the time for compliance with earlier orders, and an affidavit of Mr Gillett. It was explained to Mr McCullagh that emailing documents to Chambers did not constitute filing with the Court and the Registry directed Mr McCullagh as to how to file documents with the Court.

22    The emailed notice of address for service listed an address for service at 2 Franklin Street, Swansea, 7190, which according to the applicants’ solicitors is a property owned by an entity related to Mr McCullagh, Benson Higgins Pty Ltd (Swansea Address). A café called “Alimento” appears to operate out of the Swansea Address.

23    The emailed affidavit was in Mr Gillett’s name and gave his business address as a street address in Burnie, Tasmania (Burnie Address).

24    The emailed documents, other than the notice of address for service, included as the “address for service” the Swansea Address and also Mr Gillett’s email address.

25    Despite all of the above, no documents have been filed with the Court by or on behalf of the respondent and, as already mentioned, on 17 July 2026, the applicants filed an application for default judgment.

26    On 20 July 2026, the applicants’ solicitor attempted to serve the default judgment application materials on Mr Gillett by sending them to Mr Gillett’s email address, with a request for a read receipt, and by posting them via tracked post to the Swansea Address.

27    Mr Tammens’ affidavit in support of the application states that no read receipt to his email has been received and, as at 30 July 2026, the status of the post is “awaiting collection”.

Relevant principles

28    Rules 10.23 and 10.24 of the Rules provide:

10.23 Deemed service

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

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

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

Note:    Without notice is defined in the Dictionary.

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.

29    Rules 10.23 and 10.24 both require a necessary precondition to be satisfied before they are engaged, namely, that “it is not practicable to serve a document on a person in a way required by [the] Rules”. The term “not practicable” is to be interpreted and applied in a way that best promotes the overarching purpose, which is to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible: University of New England v Boerner [2024] FCA 191 at [8] (Wheelahan J), referring to s 37M of the FCA Act.

30    In Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528, at [50], Jackson J said (citations omitted):

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. 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. 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. Evidence of attempts to serve, attempts to speak by telephone and lack of knowledge of whereabouts will be relevant to the question of practicability.

31    The second requirement in relation to r 10.23 is that there is evidence that the documents have been brought to the attention of the person to be served. In Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 3) [2016] FCA 303 at [10], Farrell J said of this requirement:

[Rule] 10.23(b) is best understood as requiring that a document has been brought to a person’s attention, without imposing the additional requirement that the person has accorded it attention or acknowledged it. I accept the reasoning […] that to impose the latter requirement would materially reduce the ambit and efficacy of the rule which is characteristically being invoked precisely because service is being evaded or is otherwise difficult.

32    Where there is evidence of actions, steps and circumstances which alone or in combination support, on the balance of probabilities, an inference that the documents have been brought to the relevant person’s attention, the requirement in r 10.23(b) will be satisfied: British American Tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065 at [46] and [50] (Dodds-Streeton J). See also Hall v Hemant Investments Pty Ltd [2025] FCA 776 at [9] (Longbottom J).

33    In relation to the condition necessary to engage r 10.24, 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.

34    His Honour observed of the second requirement of r 10.24, at [10]:

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.

Determination

35    As already mentioned, in the first instance, the applicants sought orders for deemed service of the default judgment application materials under r 10.23, on the basis that on about 20 July 2026 they had:

(a)    emailed copies to Mr Gillett’s email address; and

(b)    posted copies to the Swansea Address.

36    Rule 10.23 has two requirements which must both be established. As I am not satisfied that the second requirement has been met, it is only necessary to deal with that requirement.

37    In short, I am not satisfied that there is evidence that the default judgment application materials have been brought to Mr Gillett’s attention. First, the post sent to the Swansea Address, according to the tracking information, remains “awaiting collection”. Secondly, there is no acknowledgement of receipt of the email, despite an acknowledgement being requested. The applicants ask the Court to infer that the method of service was successful because it was successful after the first substituted service orders. However, the methods of service in the first substituted service orders were different to the ones relied on in respect of the default judgment application materials. In particular, the applicants have not sent the default judgment application materials to Mr McCullagh’s email address or the Sandy Bay Address (which the applicants’ evidence suggests is monitored by Mr McCullagh). Previously, it was Mr McCullagh who acknowledged receipt and stated he will ensure Mr Gillett “gets it”, following which Mr Gillett attended the mediation, indicating he indeed “got it”. Furthermore, Mr Gillett and Mr McCullagh actually engaged with those orders, whereas there has been no engagement after the default judgment application materials were emailed and posted to Mr Gillett.

38    Turning to the alternative order sought, the applicants sought orders for substituted service under r 10.24 of the default judgment application materials (and the prospective substituted service orders). In particular, they sought orders that by:

(a)    emailing copies to Mr Gillett’s email address and Mr McCullagh’s email address; and

(b)    posting copies to the Swansea Address,

service would be deemed to have occurred 7 days after the sending of the email and posting of the documents.

39    First, I am not satisfied that it is not practicable to serve the documents on Mr Gillett in a way required by the Rules. Whilst Mr Gillett’s whereabouts were previously unknown to the applicants, he has since provided an affidavit providing the Burnie Address as his business address. The applicants have not said that they have made any attempt to serve Mr Gillett personally at, or send documents to, the Burnie Address.

40    Secondly, there is no evidence from which I can be satisfied that posting to the Swansea Address would be effective to bring the documents to Mr Gillett’s attention. Furthermore, the evidence that the post sent to the Swansea Address is awaiting collection tends against the inference that sending the documents to that address will bring them to Mr Gillett’s attention.

41    Whilst the Swansea Address is listed in the notice of address for service, that document has not been filed. Mr Gillett is not a lawyer. There is no suggestion Mr McCullagh is a lawyer. I am not satisfied that they would appreciate the significance of providing an address for service, which they have not done by filing a notice of address for service in any event.

42    A default judgment application is a serious matter. Mr Gillett’s sporadic involvement suggests that he intends to defend the proceeding. In my assessment, there are steps that can reasonably be taken to try to serve Mr Gillett and attempt to bring the documents to Mr Gillett’s attention.

43    Having regard to Mr McCullagh’s apparent success, on previous occasions, in bringing documents to Mr Gillett’s attention (see above at [18] and [19]), I will make orders that the applicants are to send copies of the default judgment application materials to Mr McCullagh’s email address, via email, and to the Sandy Bay Address, via tracked post.

44    Having regard to the documents emailed to Chambers on 19 June, which stated an address for service as the Swansea Address, listed Mr Gillett’s email address and indicated Mr Gillett’s business address is the Burnie Address, I will make orders that the default judgment application materials are to be sent via tracked post or email to those addresses too. I will also make orders that the applicants attempt personal service on Mr Gillett at the Burnie Address during business hours.

45    Finally, in my view, it is appropriate to require the documents to be served on the respondent to be accompanied by a communication setting out in clear terms the possible consequences for him if he does not attend the hearing of the interlocutory application for default judgment. The wording of that communication will be included in the orders to be made.

46    To allow those steps to occur and to give sufficient time for Mr Gillett to file any responsive material, I will vacate the 31 August 2026 listing.

Associate:

Dated:    10 August 2026