Federal Court Declines Grigorovich v Newsome Substituted Service Via Former Lawyers

• The Federal Court refused to allow deemed service of legal documents on an overseas respondent via his former Australian lawyers.
• The court found no evidence that the former lawyers continued to represent or communicate with the respondent after he moved to the UK.
• Substituted service was instead granted through the respondent's business email address and WhatsApp messages.
• This decision was based on evidence that the respondent actively used these digital channels for communications related to the appellant's claims.
• The ruling clarifies evidentiary requirements for digital substituted service, particularly when serving parties located outside Australia.

The Federal Court's refusal to allow deemed service via former lawyers underscores the necessity of demonstrating an active and current connection between the respondent and the proposed service channel.

The Federal Court of Australia recently addressed complex issues surrounding service of legal documents on an overseas respondent in the case of Grigorovich v Newsome trading as Envirotech AU [2026] FCA 1549. This matter arose from an appeal initiated by the appellant, Mr. Grigorovich, following the summary dismissal of his original proceedings under the Fair Work Act 2009 (Cth) by the Federal Circuit and Family Court of Australia (Division 2). Mr. Grigorovich sought leave to appeal this decision and needed to formally serve the respondent, Mr. Newsome, with an application for leave to appeal, a draft notice of appeal, and an affidavit dated 15 July 2026.

In an interlocutory application, the appellant requested orders for either deemed or substituted service, aiming to bypass the requirement for personal service. His primary proposal involved sending the necessary legal documents to the lawyers who had previously represented Mr. Newsome during the Circuit Court proceedings. Alternatively, he sought an order deeming service to have occurred simply by the act of sending these documents to the former legal representatives. Evidence presented to the court indicated that the respondent, Mr. Newsome, had since relocated to the United Kingdom, complicating traditional service methods.

The Federal Court, however, declined the appellant’s request to order deemed service through Mr. Newsome’s former lawyers. This decision in Grigorovich v Newsome highlights critical considerations for Grigorovich v Newsome substituted service former lawyers. The court found no basis to conclude that the Australian lawyers who had acted for the respondent in the Circuit Court continued to represent him or maintain communication channels with him after his departure from Australia to the UK. Without such an ongoing professional relationship, the court could not reasonably assume that documents sent to these former legal representatives would reach the respondent.

Furthermore, the court noted deficiencies in the appellant's prior attempts to serve documents by other means. It was observed that these earlier communications lacked any accompanying court order or formal endorsement indicating their status as valid service. This absence of official backing meant that these attempts could not be relied upon to establish effective service, reinforcing the court's cautious approach to deemed service refusal Federal Court when clear evidence of receipt or ongoing representation is lacking.

While rejecting the proposed service via former counsel, the Federal Court did grant orders for Federal Court substituted service Australia through alternative digital methods. The court authorized the appellant to serve the relevant documents by sending them via email to Mr. Newsome’s business email address and through WhatsApp messages. This decision was predicated on the evidence demonstrating that Mr. Newsome had previously used these specific digital channels to receive communications pertinent to activities that were the subject of the appellant's claims. The court also granted leave, to the extent required, for the appellant to send his 15 July 2026 affidavit.

The court acknowledged that Mr. Newsome was likely situated in the UK when these documents would be dispatched. It also considered that he might not be actively monitoring communications related to his former Australian business, given that he had ceased all operations in Australia. Regarding service outside Australia requirements, the court clarified that while leave is typically necessary for serving most documents internationally, service of the originating application itself did not require such leave. This exception applied because the proceedings concerned events allegedly occurring in Australia and an alleged contravention of an Australian statute, specifically the Fair Work Act 2009 service. The court ultimately found that personal service or service via the Hague Convention was not practicable in this instance, making email WhatsApp service Australia the most viable option.

This ruling from Grigorovich v Newsome [2026] FCA 1549 provides important guidance for litigants seeking to serve parties who have left the jurisdiction. The Federal Court's refusal to allow deemed service via former lawyers underscores the necessity of demonstrating an active and current connection between the respondent and the proposed service channel. It highlights that past legal representation, once severed, does not automatically constitute a reliable conduit for ongoing legal communication. The court also suggested that for future substituted service orders, it might be appropriate to require the service of those orders themselves alongside the relevant documents, ensuring clarity and formal notice.

The decision also offers practical insights into the evidentiary requirements for successfully obtaining substituted service through modern digital platforms. The court's willingness to permit service via email and WhatsApp was directly linked to evidence of the respondent's prior engagement with these specific channels for relevant communications. This emphasizes that parties seeking email WhatsApp service Australia must present compelling evidence that the digital contact points are genuinely active and regularly used by the respondent, especially when the respondent is located overseas and may have disengaged from their former affairs.

Lawyers should note the Federal Court's refusal to allow deemed service via former counsel when the respondent has left the jurisdiction and severed ties. This decision clarifies the evidentiary requirements for successfully obtaining substituted service via modern digital channels like email and WhatsApp, providing a practical guide for serving parties located overseas.

Source: Original reporting via legal news publication.