Background
CLZ26, proceeding under a pseudonym, commenced proceedings on 13 March 2026 against the State of Victoria and Richard Pithouse, a former Magistrate of the Magistrates’ Court of Victoria. The State entered an address for service, but Mr Pithouse had not appeared and had not been personally served.
The applicant tried several means to locate and serve Mr Pithouse. A skip-trace search and personal-service attempt failed; documents sent by express post to an address obtained through a subpoena to Court Services Victoria were returned. The applicant had also sent the court documents repeatedly to a mobile number via WhatsApp, with delivery indicators shown, and a WhatsApp voice call to that number rang unanswered.
The Court’s Holding
Justice Lenehan granted substituted-service orders under r 10.24(a) of the Federal Court Rules 2011 (Cth). The applicant may serve the originating application, statement of claim, specified procedural documents and prior orders by sending PDF attachments through WhatsApp to the identified mobile number.
The Court held that personal service was not sensible or realistic given the unsuccessful efforts already made. Although the evidence identifying the number as Mr Pithouse’s was not entirely satisfactory, it was sufficient when considered with evidence that the Australian Human Rights Commission had the same number during its conciliation process, the WhatsApp messages were delivered, and the WhatsApp call connected. The Court found on the balance of probabilities that the account was still used by Mr Pithouse and that WhatsApp service was reasonably likely to bring the proceeding to his attention.
Key Takeaways
- Substituted service may be ordered where personal service is no longer sensible or realistic, even if it is not impossible.
- The proposed alternative method must be supported by evidence that it will probably bring the documents to the respondent’s attention.
- WhatsApp delivery records and a connected call, combined with other evidence linking the number to the respondent, supported service by WhatsApp.
Why It Matters
The decision illustrates the Federal Court’s willingness to authorise service through contemporary messaging platforms where conventional service has failed and the evidence shows the account is active and associated with the intended recipient.
It also underscores the importance of documenting each attempted method of service and supplying evidence connecting the proposed electronic channel to the respondent.