Australian Building and Construction Commissioner v Windus

The Australian Building and Construction Commissioner brought proceedings against Windus in the Federal Court of Australia alleging breaches of the Building and Construction Industry (Improving Productivity) Act 2012. Windus cross-claimed against various parties, including SKS Group Pty Ltd, alleging breaches of the Fair Work Act 2009. The cross-claimants sought an order for substituted service as personal service was not practicable. They argued that sending a text message and email to the third cross-respondent, Sipkes, was likely to place him on notice and was therefore an appropriate means of substituted service.

The court considered whether substituted service was appropriate in these circumstances. The cross-claimants demonstrated that personal service was not practicable as Sipkes had not responded to previous attempts to serve him. The court found that sending a text message and email to Sipkes was likely to place him on notice, as he had previously engaged with the cross-claimants by email and had a telephone number listed on LinkedIn. The court held that substituted service was appropriate in these circumstances.

The court granted the cross-claimants' interlocutory application for substituted service. It ordered that SKS Group Pty Ltd be removed as the first cross-respondent and SKS Builders Pty Ltd be substituted as the first cross-respondent. The court also ordered that the notice of cross-claim and statement of cross-claim be served on Sipkes by sending a text message and email. The court further ordered that the cross-respondents file and serve any defences to the cross-claim by 21 October 2019 and that the cross-claimants file and serve any reply by 4 November 2019. The cross-claim was listed for mediation before a Registrar of the Court after 11 November 2019.