Federal Court of Australia

CLZ26 v State of Victoria (Substituted Service) [2026] FCA 1370

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 10.24(a) of the Federal Court Rules 2011 (Cth), service by the applicant of the following documents on the second respondent may be effected by sending them as a PDF attachment via the WhatsApp messaging platform to mobile number 0434 034 669:

(a)    Originating Application under the Australian Human Rights Commission Act 1986 (Cth) filed 13 March 2026;

(b)    Applicant’s Statement of Claim filed 13 March 2026;

(c)    Genuine steps statement filed 13 March 2026;

(d)    Orders of Registrar Stewart made 19 March 2026;

(e)    Orders of Justice Lenehan made 17 April 2026;

(f)    Orders of Justice Lenehan made 3 June 2026;

(g)    Orders of Justice Lenehan made 3 August 2026; and

2.    Service of the documents on the second respondent pursuant to order 1 be deemed to be effected one day after the documents have been sent via WhatsApp to the number 0434 034 669, or if having already been sent, on the date of this order.

3.    The applicant’s costs of this interlocutory application be costs in the cause.

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

REASONS FOR JUDGMENT

1    This is an interlocutory application for orders for substituted service of the Originating Application and Statement of Claim on the second respondent in this proceeding. The first respondent takes no position regarding this interlocutory application. Both the applicant and the first respondent are content for this interlocutory application to be determined on the papers. For the reasons outlined below, I will make orders allowing for a form of substituted service via WhatsApp messaging.

2    These proceedings were commenced on 13 March 2026 by the applicant, CLZ26 (a pseudonym), against the first respondent, the State of Victoria, and the second respondent, Mr Richard Pithouse.

3    Mr Pithouse is a former Magistrate of the Magistrate’s Court of Victoria.

4    On 25 March 2026, the first respondent filed a notice of address for service. As of the date of this judgment, no appearance has been filed by Mr Pithouse, nor is there any indication that personal service has been effected.

Background

5    On 31 August 2026, the applicant filed an interlocutory application seeking orders for substituted service. The affidavit evidence before (which is detailed below) demonstrates that the applicant has gone to great lengths to effect service on Mr Pithouse, with no success as of yet.

6    In her affidavit of 1 April 2026 (First Gronow Affidavit), Ms Gronow (the solicitor for the applicant) deposes that the applicant engaged a process server to conduct a “skip trace” search in March 2026 (via a “skip trace agent”) to attempt to identify the whereabouts of Mr Pithouse.

7    Ms Gronow deposes in her affidavit of 31 August 2026 (Second Gronow Affidavit) that on 3 June 2026, the applicant was granted leave to issue a subpoena to Court Services Victoria to provide documents recording Mr Pithouse’s residential address, personal email address, mobile number and/or landline number. On 7 July 2026, Registrar Stewart ordered by consent that the applicant and the first respondent be granted leave to uplift, inspect and copy the documents produced in respect of the subpoena. The only relevant document produced in respect of that subpoena was a residential address of Mr Pithouse.

8    Ms Gronow further deposes, in the Second Gronow Affidavit, that on 10 July 2026 she, on behalf of the applicant, engaged a process server to effect personal service on Mr Pithouse. On Thursday, 16 July 2026, the process server advised that it had been unable to effect personal service.

9    Ms Gronow deposes, in the Second Gronow Affidavit, that on 16 July 2026 she directed a legal assistant at her firm to send the documents in this proceeding via express post to Mr Pithouse’s residential address, which was unsuccessful, with the documents returned to sender on 18 August 2026.

10    Ms Gronow deposes in the Second Gronow Affidavit that on 27 July 2026, she instructed a legal assistant at her firm, Ms Fitzsimmons, to send documents in the proceeding (including the statement of claim) to Mr Pithouse’s phone number (0434 034 669) via WhatsApp. Screenshots of those messages show two dark grey tick symbols, which I accept indicate that they were delivered. Then, on 24 August 2026, Ms Gronow deposes that when she instructed Ms Fitzsimmons to call Mr Pithouse’s phone number (0434 034 669) via WhatsApp at 1:53 pm, the number rang but the call went unanswered. She deposes that Ms Fitzsimmons then again sent through documents in the proceeding to that number via WhatsApp. Ms Gronow further deposes that on 31 August 2026, she instructed Ms Coffey (a solicitor at her firm) to send through documents in this proceeding (including the originating application and the statement of claim) to that number via WhatsApp.

11    Ms Gronow deposes that the screenshots of those messages, which are annexed to her affidavit, portray two ‘green ticks’ next to the message, which indicate that the message has been received. Ms Gronow deposes that neither Ms Fitzsimmons nor Ms Coffey have received a response from Mr Pithouse.

12    Finally, Ms Gronow deposes in the Second Gronow Affidavit that the first respondent informed her via email that it did not hold any contact details for the second respondent.

Relevant rules and principles

13    Rule 10.24 of the Federal Court Rules 2011 (Cth) states that:

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.

14    As Mr Pithouse is an individual, he must be personally served: Rules rr 8.06, 10.01.

15    In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500, Colvin J described the circumstances in which the Court ought to make substituted service orders as follows:

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.

The proposed method of service

16    I am satisfied, based upon the evidence before me, that the applicant has demonstrated that it “is not sensible or realistic to effect personal service” on Mr Pithouse. I turn then to the proposed method of service.

17    As noted by O’Bryan J in Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) v Huang (No 3) [2021] FCA 611 at [12], the alternative method proposed must be one which “in all reasonable probability, if not certainty, will be effective to bring knowledge of the process to the respondent”.

18    The applicant submits that service via WhatsApp to the last known number of Mr Pithouse is reasonably likely to bring the proceeding to his attention.

19    There is some evidence, albeit not entirely satisfactory, that the phone number 0434 034 669 is that of Mr Pithouse. In the First Gronow Affidavit, Ms Gronow said this:

On Monday 16 March 2026, [a legal assistant at Moores] emailed the Applicant to confirm what contact details she holds for the Second Respondent. The Applicant only had the phone number (0434 034 669). She previously communicated with the Second Respondent via that phone number; or his rjp@courts.vic.gov.au email address which is no longer active…

20    That email communication was not in evidence. However, other emails sent between the applicant’s solicitors and the process server likewise asserted (presumably on instructions from the applicant) that that was the telephone number for the second respondent.

21    It would, of course, have been better for that evidence to be adduced from the applicant directly, but no objection to any evidence sought to be adduced by the applicant was taken by the first respondent.

22    The applicant further submits that the Australian Human Rights Commission used this same number to communicate with Mr Pithouse during the conciliation process until the termination of the complaint on 13 January 2026. In its Notice of Termination annexed to the originating application dated 13 March 2026, Rachel Holt (a delegate of the President of the Commission) states that “the Commission contacted the Second Respondent about the complaint. I understand that the Second Respondent declined to participate in conciliation”.

23    The applicant also refers to paragraphs [11]-[12] of the Second Gronow Affidavit, which state that:

On 28 April 2026, Ms Britto [an employee of the Commission] responded by email attaching a letter from Ms Rachel Holt, Senior Executive, Investigation and Conciliation Service. The letter advised that:

(a)    the AHRC was statutorily exempt from complying with the Court order;

(b)    the mobile phone number the Applicant had on record for the Second Respondent (0434 034 669) was the same mobile number held by the AHRC; and

(c)    the AHRC sought those contact details for the Second Respondent from the Magistrates Court of Victoria.

A copy of my email correspondence with Ms Britto between 23 April and 15 May 2026, and the letter from the AHRC dated 28 April 2026 is now shown to me and marked AG-11.

24    That letter from the Commission dated 28 April 2026 then relevantly states, among other things:

Having reviewed the provided documents, I am able to confirm that the Commission does not have any phone number for the respondent that is different from the phone number already held by the applicant. I can also confirm that the Commission sought contact details for the respondent from the Magistrates Court of Victoria and suggest that the applicant may want to issue a subpoena to the Court seeking the same information.

25    I accept that the inference to be drawn from the sum of that evidence is that the Commission did in fact contact Mr Pithouse on the mobile phone number 0434 034 669 during the conciliation process.

26    I also accept that it is likely that Mr Pithouse continues to use that telephone number, noting that it appears from the evidence before me that it is still connected to a telecommunications service and is functioning. As the applicant submitted in that regard:

… the WhatsApp records demonstrate successful delivery of the documents transmitted on 27 July 2026 and 31 August 2026. The successful delivery of multiple messages, together with the fact that a WhatsApp voice call to that number connected and rang on 24 August 2026, supports the inference that the number remains active and is currently associated with a device capable of receiving communications.

27    As I have said, I would go further and conclude that that WhatsApp account and that number is still being used by Mr Pithouse. On that basis, I am satisfied, on the balance of probabilities, that service by WhatsApp is “reasonably likely” to bring the matter to his attention.

28    Accordingly, I will make the substituted service orders sought by the applicant.

Associate:

Dated:    21 September 2026