Federal Court of Australia

Grigorovich v Newsome trading as Envirotech AU [2026] FCA 1549

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the application for leave to appeal dated 16 July 2026 and accepted for filing on 20 July 2026 and draft notice of appeal dated 15 July 2026, instead of being served, may be brought to the attention of the respondent by:

(a)    sending a copy of the application and draft notice of appeal as attachments to an email sent to the email address office@envirotechau.com.au together with a copy of these orders and the Court's reasons for these orders and the affidavit of the applicant dated 15 July 2026 filed in these proceedings; and

(b)    sending a copy of the application and draft notice of appeal as attachments to a WhatsApp message to +61 455 596 651 together with a copy of these orders and the Court's reasons for these orders and the affidavit of the applicant dated 15 July 2026 filed in these proceedings.

2.    The email and WhatsApp message sent in accordance with order 1 shall include the following:

IMPORTANT COURT DOCUMENTS

The attached documents are being sent to you pursuant to orders made by the Federal Court of Australia. If you do not enter an appearance in those proceedings then orders may be made in your absence.

3.    To the extent necessary, leave is given pursuant to r 10.44 for the affidavit of the applicant dated 15 July 2026 to be sent to the respondent in accordance with these orders.

4.    The originating application, draft notice of appeal and the affidavit of the applicant dated 15 July 2026 shall be taken to be served upon compliance with orders 1 and 2.

5.    Within 7 days of compliance with orders 1 and 2, the applicant shall file an affidavit verifying such compliance.

6.    Within 3 working days of any request from the respondent being received by the applicant for copies of other documents filed in these proceedings, the applicant shall send copies of those documents to an email address nominated by the respondent.

7.    The respondent shall have 30 days from the date of compliance with orders 1 and 2 to file an appearance.

8.    These proceedings are listed for a further case management hearing at 9.15 am AWST on 9 December 2026.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Igor Grigorovich commenced proceedings under the Fair Work Act 2009 (Cth) in the Federal Circuit and Family Court of Australia (Division 2) against Mr Craig Newsome, trading as Envirotech AU. The proceedings were summarily dismissed. Mr Grigorovich now seeks leave to appeal against that decision.

2    Mr Grigorovich has attempted to effect personal service of an application for leave to appeal, draft notice of appeal and related documents (being an affidavit dated 15 July 2026) on Mr Newsome. He now seeks orders for deemed or substituted service. The orders as to service proposed by Mr Grigorovich's interlocutory application would dispense with personal service and provide for service to be effected by sending the documents to the lawyers who represented Mr Newsome in the Circuit Court (or deem service on the basis that the documents have been sent to those lawyers). The evidence in support of the application raises the further possibilities of service by sending the documents to an identified email address or by WhatsApp message.

3    The application came before me on 17 September 2026. The application was adjourned to 29 September 2026 to allow Mr Grigorovich to file and serve a further affidavit deposing to attempts by Mr Grigorovich to contact Mr Newsome. In that further affidavit Mr Grigorovich deposed that Mr Newsome has returned to the United Kingdom. He also addressed the possibility that service might be effected by SMS, Viber or WhatsApp, or by sending an email to an email address that had been used by Ms Grigorovich to communicate with Mr Newsome during the period the subject of his Fair Work Act claims.

Relevant evidence in support of the application

4    The affidavit evidence before me concerning service on Mr Newsome is to the following effect.

5    On 20 July 2026, the application for leave to appeal was accepted for filing. Mr Grigorovich forwarded the confirmation email from Registry to the associate to Justice Charlesworth, who was the Duty Judge at the time, and copied in Mr Newsome and lawyers who had acted for Mr Newsome in the Circuit Court. The email attached stamped copies of the application for leave to appeal, the draft notice of appeal, Mr Grigorovich's affidavit and other documents related to an urgent application.

6    Although the lawyers had sent a letter to Mr Grigorovich in the course of the proceedings in the Circuit Court to the effect that the lawyers did not have instructions to accept service for Mr Newsome, they had subsequently appeared for him in the proceedings and had sent a letter of demand seeking to recover costs from Mr Grigorovich. There is no evidence of any response from those lawyers to the email attaching the documents for the application for leave to appeal brought in this Court.

7    On 3 September 2026, Mr Grigorovich emailed Mr Newsome's business email address attaching the application for leave to appeal, the draft notice of appeal, an interlocutory application for a stay, an affidavit in support, and a covering letter.

8    On 4 September 2026, Mr Grigorovich attempted to personally serve Mr Newsome by attending his business address as appears on the ASIC database. The business address was a private residence. A real estate agent was present at the address and informed Mr Grigorovich that the tenant had vacated the property some two months earlier and had returned to the United Kingdom.

9    Mr Grigorovich deposes that Mr Newsome was a 'British native'. His affidavit annexes evidence that shows Mr Newsome undertook his high school and university education in the United Kingdom.

10    On 17 September 2026, Mr Grigorovich sent an SMS message to Mr Newsome. On 18 September 2026, Mr Grigorovich called Mr Newsome's mobile number and received an automated message that the number was not connected. On the same day, Mr Grigorovich attempted to contact Mr Newsome using the messaging applications Viber and WhatsApp. Neither attempt was successful. Mr Grigorovich also sent a series of WhatsApp messages to Mr Newsome requesting confirmation of receipt of the originating documents, informing Mr Newsome that the proceedings had been commenced and providing a copy of Mr Grigorovich's affidavit sworn 8 September 2026 and the orders made 17 September 2026. Mr Grigorovich deposed that Mr Newsome was recorded by WhatsApp as having been online with the WhatsApp account connected to a number dialled by Mr Grigorovich on 17 and 18 September 2026.

11    Mr Grigorovich has received no response from Mr Newsome to any of the attempted communications. Mr Grigorovich has deposed that Mr Newsome's business email address remains operational on the basis that Mr Grigorovich received a delivery receipt for an email sent on 17 September 2026.

The issues raised by the interlocutory application

12    The following issues arise:

(1)    Should there be orders for deemed service?

(2)    Should there be orders for substituted service of the kind initially proposed, that is by service on the lawyers who had acted for Mr Newsome in the Circuit Court?

(3)    Should there be orders for substituted service by other means raised in the affidavits filed by Mr Grigorovich?

(4)    If yes to (1), (2) or (3) in what terms should the orders be expressed?

Issue (1): Should there be orders for deemed service?

13    I am not persuaded that there should be orders for deemed service. Orders of that kind are made on the basis that there is sufficient evidence before the Court to conclude that the relevant documents have been brought to the attention of the person to be served. Given the evidence concerning the departure of Mr Newsome from Australia, I am not persuaded that communications with the Australian lawyers who acted for him in the Circuit Court proceedings will have been brought to the attention of Mr Newsome. In particular, there is nothing to indicate that they have continued to act for, or been in communication with, Mr Newsome since his departure from Australia.

14    As to attempts by Mr Grigorovich to send the documents to Mr Newsome using other means, those documents have not been accompanied by any order of the Court concerning service. The documents were not accompanied by any formal endorsement to indicate that they could be served in the manner sent. Further, they were sent at a time when, on the evidence, it appears that Mr Newsome was likely to have been in the United Kingdom. In respect of most of those documents, leave is required before service can be effected on a person outside of Australia. On the evidence, Mr Newsome has ceased all business in Australia and, consequently, may not be paying attention to documents relating to his former business. In those circumstances, it is more appropriate to consider the making of orders for substituted service and to require those orders to be served together with the relevant documents.

Issue (2): Should there be orders for substituted service of the kind initially proposed, that is by service on the lawyers who had acted for Mr Newsome in the Circuit Court?

15    It has been held that substituted service can be ordered on former solicitors: Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [61] (O'Bryan J); LFDB v SM (No 5) [2025] FCA 654 at [15] to [23], [27] (Younan J). This includes where solicitors 'do not have instructions' to accept service: LFDB v SM (No 5) [2025] FCA 654 at [15] to [23], [27] (Younan J). The 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: DHI22 v Qatar Airways Group Q.C.S.C. [2023] FCA 616 at [23] (Halley J). How recently the solicitors acted for the respondent is a relevant factor: Mansfield at [61].

16    I am not persuaded that it is appropriate for orders to be made by way of substituted service requiring the relevant documents to be sent to the lawyers who acted in the Circuit Court proceedings. As I have mentioned, there is no indication that those lawyers have acted for Mr Newsome since he has left Australia, nor is there any indication that they have communicated with him in the United Kingdom.

Issue (3): Should there be orders for substituted service by other means raised in the affidavits filed by Mr Grigorovich?

17    As I have mentioned, the additional affidavit evidence filed by Mr Grigorovich indicates other means by which the documents may be communicated to Mr Newsome in the United Kingdom. Those possibilities are a communication to his business email address and a communication by WhatsApp message.

18    The Federal Court Rules 2011 (Cth) make provision for a substituted form of service to replace that provided for in the Rules. If it is not practicable to serve a document in the way required by the Rules then under r 10.24, a party may apply for an order (a) substituting another method of service; or (b) specifying that instead 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 on the happening of a specified event or at the end of a specified time.

19    I dealt with the relevant principles in Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [9]-[10]. It must be demonstrated that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so.

20    While Mr Grigorovich did not rely on r 10.49, I note that r 10.49 makes express provision for substituted service outside of Australia.

21    Rule 10.49 provides that if service on a person outside of 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 on the happening of a specified event or at the end of a specified time.

22    However, the general substituted service rule (r 10.24) is available notwithstanding the presence of r 10.49: The Noco Company v Hong Kong Haowei Technology Co., Ltd. [2023] FCA 533 at [15]-[16] (Moshinsky J) citing Australian Information Commission v Facebook Inc [2020] FCA 531 at [62]-[66] (Thawley J). So, there is no requirement for Mr Grigorovich to have attempted to serve Mr Newsome in accordance with the Hague Convention before seeking substituted service: Noco at [15].

23    Having regard to the evidence indicating that communications to the email address and the WhatsApp address are being received and that those channels were used by Mr Newsome to receive communications in relation to the activities the subject of Mr Grigorovich's claims, I am satisfied that it is appropriate for orders to be made for substituted service on the basis that it is not practicable to serve Mr Newsome personally or by the Hague Convention.

Issue (4): If yes to (1), (2) or (3), in what terms should the orders be expressed?

24    As Mr Newsome is out of the jurisdiction, those orders should not be for service but should specify that, instead of being served, steps are to be taken to bring the relevant documents to the attention of Mr Newsome by email to his business email address and by message sent by WhatsApp. Further, there should be an order that upon the taking of those steps, Mr Newsome is to be taken to have been served with those documents.

25    In doing so, I note that, as matters presently stand, Mr Grigorovich seeks to advance proceedings in this Court in respect of events alleged to have occurred in Australia that relate to the alleged contravention of an Australian statute. Therefore, service of the originating application may be served outside Australia without leave: r 10.42(j). In the present case, the proceedings were commenced by originating application with an affidavit in support being the affidavit of Mr Grigorovich dated 15 July 2026. As the affidavit contains the basis for the application for leave to appeal, I am persuaded that there should be leave, to the extent necessary, for the purposes of r 10.44 for that affidavit to be sent to Mr Newsome.

26    There should be orders for substituted service in the terms I have indicated.

Associate:

Dated:    20 October 2026