Federal Court of Australia

Harvey v Henderson, in the matter of Henderson [2026] FCA 1697

ORDERS

THE COURT ORDERS THAT:

1.    Orders 4 to 6 made by the Registrar on 2 September 2026 be set aside.

2.    Pursuant to Rule 10.23 of the Federal Court Rules 2011 (Cth), the Amended Creditor’s Petition dated 2 September 2026 be deemed to have been served on the respondent on 9 September 2026.

3.    There be no order as to costs in relation to the respondent’s interim application dated 14 October 2026 (with the intention that each party bear their own such costs).

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

OWENS J:

1    I have before me an application by the respondent, Mr Henderson, pursuant to section 35A(5) of the Federal Court of Australia Act 1976 (Cth), for review of a decision of a Registrar to permit substituted service of a creditor’s petition on him.

2    Although styled a review, on such an application the Court conducts a de novo rehearing, and determines the matter afresh, as things stand at the time of the review, on the evidence before it, without being concerned to identify error on the part of the Registrar: see Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [17] (Allsop CJ, Markovic and Colvin JJ).

3    It is thus relevant to observe that things have moved on a little since the Registrar made his decision. There is no doubt now that the creditor’s petition has come to Mr Henderson’s attention. In seeking to agitate the validity of service in accordance with the Registrar’s orders, therefore, Mr Henderson advances a position that might be described, in the words of McInerney J in Pino v Prosser [1967] VR 835 at 837, as “remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ … should be held not to have been served”.

4    The reason he does so is not, however, entirely incomprehensible. The basis upon which the Registrar was moved to make substituted service orders, and the basis upon which it was said to be appropriate that I sanction those orders today, was that Mr Henderson was evading service. I wish to make it clear that there is simply no basis in the evidence to support such a submission, let alone a conclusion to that effect.

5    Nevertheless, because I am dealing with the position as it stands today, I do not think that it would be consistent with the overarching purpose prescribed in section 37M of the Federal Court Act to focus on whether the applicant should be entitled to an order for substituted service. It may be accepted that there would be real, if not insurmountable, difficulties, on the evidence before me, in making such an order (the reasons for that conclusion will become clear in due course).

6    The real question now must be whether, in the circumstances, the fact that the creditor’s petition has come to the attention of Mr Henderson should be taken to constitute valid and effective service. As the Full Court observed in Ginnane v Diners Club Ltd (1993) 42 FCR 90 at 95 (Northrop, Sheppard and Einfeld JJ), a case not dissimilar to the present:

The order of 19 June 1992 [i.e., an order for substituted service] has been acted upon. On [the application for] review, it would have been open to the court to make an order deeming service to have been effected in conformity with the order of the Deputy District Registrar.

7    The applicant proposes such a course. Whether such an order should be made might be thought to be obvious, especially when, as the Lord Chancellor observed in Hope v Hope (1854) 4 De GM&G 328 at 342; [1854] EngR 805; 43 ER 534 at 539-540:

The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.

8    Given that Mr Henderson undoubtedly has actual notice of the creditor’s petition, why would I not deem that service to be effective?

9    The first reason, he submits, is that “the Rules are the Rules”. In circumstances where it has not been shown that the applicant was or is unable to comply with the ordinary rules regarding service, those rules should apply according to their terms.

10    The fundamental answer to that submission is that the Rules are the servants of the overarching purpose sought to be achieved in litigation in this Court, and not ends in themselves. Where the fundamental justification for, or objective of, a particular rule has been achieved otherwise than by compliance with the rule in question, it will often be the case that an insistence on compliance with the rule will serve to undermine, rather than advance, the overarching purpose.

11    The second reason, as I understood Mr Henderson’s submissions, is that rule 10.23 of the Federal Court Rules 2011 (Cth), which deals with deemed service, still stipulates that a pre-requisite for such an order is that it has been shown that “it is not practicable to serve a document on the person in a way required” by the Rules.

12    Mr Henderson submits that the applicant has not proven that it is impracticable to effect personal service upon him.

13    The evidence relied upon by the applicant in relation to her attempts to effect personal service on Mr Henderson was less than satisfactory. It was limited to an affidavit sworn by the applicant’s solicitor, who said that he had “made attempts at serving [Mr Henderson] at [his] last known address”. The only detail of those attempts was sought to be proved by annexing a letter to the affidavit. That letter was on the letterhead of “Risk & Security Management”, and was stated to be sent by the “Legal Support Services Team”. It purported to describe a single attempt to serve Mr Henderson by visiting his residence at 5:48pm on a Friday evening, in circumstances where it was apparent that nobody was home. It relevantly stated:

We refer to the attempted service of GARY ROGER HENDERSON and advise the below action has been taken.

14    Mr Henderson objected to the admission of that letter into evidence, on the ground that it was inadmissible hearsay. The applicant sought to rely on section 75 of the Evidence Act 1995 (Cth). I did not consider, however, that that section made the letter admissible. While there is no doubt that this application is an “interlocutory proceeding”, I did not accept the applicant’s submission that evidence of the “source” of the hearsay representation contained in the letter had been adduced. The source in question must be the “agent” of Risk & Security Management that is referred to in the letter. That description is not, in my view, a sufficient identification of the source. As a general proposition, section 75 requires “that the person who made the representation be identified”: De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) (2012) 200 FCR 253; [2011] FCA 645 at [40] (Stone J).

15    It follows that there was, in fact, no real evidence of any attempt to serve Mr Henderson personally.

16    The applicant’s solicitor also referred to the fact that a solicitor instructed by Mr Henderson had attended Court on a number of occasions, without entering an appearance on behalf of Mr Henderson. That solicitor did not hold instructions to accept service on behalf of Mr Henderson, and so service could not be effected by delivering the creditor’s petition to him.

17    Mr Henderson submitted, with some force, that his failure to instruct a solicitor to accept service on his behalf did not go very far, if at all, to demonstrating that personal service upon him was not practicable.

18    In those circumstances, I accept Mr Henderson’s submission that the evidence of the applicant could not be regarded as proving that personal service was not practicable in the sense required to justify an order for substituted service. It is for that reason that I accept that the applicant would not be able to persuade me that, viewed prospectively, an order for substituted service was appropriate.

19    Mr Henderson’s evidence, however, establishes that:

(a)    he lives on a rural property near Yowrie, NSW; and

(b)    Yowrie is a six hour drive away from Sydney (which is where the applicant and her solicitors are based).

20    What is “practicable” within the meaning of rule 10.23 has been held to have a wide 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: Emmott v Wilson, in the matter of Wilson [2026] FCA 810 at [59] (Halley J); Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] (Jackson J); Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11]-[15] (Besanko J). Fundamentally, the question is whether a person is able to be served personally by the use of reasonable effort, with what is reasonable depending on the circumstances. As Halley J observed in Emmott at [63]:

Satisfaction of the requirement to establish impracticability 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.

21    Here, the effort involved in an attempt to serve Mr Henderson personally would not be negligible, even if it may not inevitably be great. While it may be accepted that his daily routine is reasonably regular, it cannot be guaranteed that he will in fact be present at his house at any particular moment in time. In circumstances where he lives in a rural area, meaning that the time required for any attempt to serve him must take into account the need to spend substantial time travelling to and from his property, and that any individual attempt to serve him may not prove effective, I am satisfied that the effort that may be involved in effecting personal service is not reasonable in circumstances where it is uncontroversial that the creditor’s petition has in fact already come to his attention. Indeed, such effort would not be reasonable if for no other reason than that it would necessarily result in material delay to these proceedings, where it is in the interests of everybody that the matter proceed expeditiously: see, e.g, Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047 at [148] (Foster J).

22    Mr Henderson submitted that he expected that the applicant might attempt to serve him today, following his appearance at Court. Perhaps that may have proved to be true. There may be a range of interesting arguments that might arise consequent upon an attempt to serve a person within the precincts of the Court, none of which I propose to explore: see, e.g., Re O’Sullivan; Ex parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145 (Lindgren J). At the very least, it is not certain that such an attempt, if it were made, would be effective in fact or law. In circumstances where it is not in dispute that the creditor’s petition has in fact come to Mr Henderson’s attention, almost any uncertainty, difficulty, or potential delay seems to me to render reliance on personal service “not practicable”.

23    It follows that I am satisfied that an order for deemed service should be made under rule 10.23.

24    The evidence showed that on 2 September 2026 the creditor’s petition was emailed to an email address that is used by Mr Henderson, including in relation to these proceedings. I am satisfied that, by no later than seven days after that, (that is, 9 September 2026), the document would have come to Mr Henderson’s attention, and that service should be deemed to have been effective as at that date.

25    The circumstances of this case may fairly be described, as the Full Court described those in Ginnane (at 92), as “artificial and unreal”. In most cases where questions of alternative means of service arise, the fundamental question is whether a particular method will be (or should be regarded as) effective to bring a document to the attention of a person, so that proceedings may be conducted on the basis that they have had a fair opportunity to resist a claim that is made against them. In others, the question is whether service was effective by a date that has some particular relevance. In this case, Mr Henderson seeks to insist on strict compliance with rules the substantive purpose of which has been uncontroversially achieved. The inevitable result has been the needless waste of time and money. The taking of such points represents the antithesis of the overarching purpose to which all parties to proceedings in this Court have an obligation to conform.

26    It follows that even if I had not been satisfied that an order for deemed service pursuant to rule 10.23 should be made, in circumstances where it is uncontroversial that Mr Henderson has actual notice of the creditor’s petition, and no practical or useful purpose could possibly be served by a debate about the manner in which service under the Rules should occur, I would have made an order pursuant to rule 1.34 of the Rules dispensing with the requirements of the rules, and ordering, pursuant to rule 1.35, that the email of 2 September 2026 constituted effective service on Mr Henderson: see, generally, United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 4) [2010] FCA 791 (McKerracher J). As Stewart J observed in Royal Caribbean Cruises Ltd v Reed (No 3) [2021] FCA 225 at [35]:

There is, however, a more fundamental reason why the interlocutory application [for review of orders for substituted service] should be dismissed, which is that the respondents now have proper notice of the proceeding and they are before the Court. The manner of that notice or service is, therefore, irrelevant.

27    For these reasons, on my de novo determination of the applicant’s application, I would set aside the Registrar’s orders concerning substituted service, and make an order for deemed service pursuant to rule 10.23 in the terms I have indicated.

28    While I have been critical of Mr Henderson’s agitation of this issue, I do not overlook the significant responsibility that the applicant bears for the present situation. Her attempts at service, and the subsequent conduct of proceedings in this Court directed to achieving service other than by personal service, has left much to be desired. Much of this mess could have been avoided with the exercise of reasonable diligence.

29    In the circumstances, I consider it to be appropriate that each party bear their own costs in relation to this application.

Associate:

Dated:    10 November 2026