Charlton v CNH Capital Australia Pty Ltd
[2013] FMCA 232
•4 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHARLTON v CNH CAPITAL AUSTRALIA PTY LIMITED | [2013] FMCA 232 |
| BANKRUPTCY – Application to set aside bankruptcy notice – lodging by facsimile – whether filed in or out of time. |
| Acts Interpretation Act 1901, s.15AD Bankruptcy Act 1966, ss.33(1)(c), 41(6A) Federal Court and Federal Magistrates Court Regulations 2012, r.2.06 Federal Court Rules 2011, rr.2.21-2.25 Federal Magistrate Court Rules 2001, rr.1.06(1), 2.05(2), 2.05(3) |
| Diggins v ANZ Executors and Trustee Company Ltd [2007] FMCAfam 676 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Re Shaddock; Shaddock v Commonwealth Bank of Australia (unreported Federal Court of Australia, Goldberg J, 9 April 1998) |
| Applicant: | JOSEPHINE CHARLTON |
| Respondent: | CNH CAPITAL AUSTRALIA PTY LIMITED (ACN 069 132 396) |
| File Number: | SYG 367 of 2013 |
| Judgment of: | Altobelli FM |
| Hearing date: | 22 March 2013 |
| Date of Last Submission: | 22 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2013 |
REPRESENTATION
| The Applicant (self-represented) |
| Solicitors for the Respondent: | Bayside Solicitors |
ORDERS
Pursuant to Federal Magistrates Court Rules 2001 r.2.05(3) the Application sent by facsimile machine on 18 February 2013 is taken to have been filed on 19 February 2013.
The Application filed 19 February 2013 is listed for hearing before me on 14 June 2013.
Any further evidence upon which the applicant intends to rely must be filed and served within 14 days.
Any further evidence upon which the respondent intends to rely must be filed and served no later than 28 days thereafter.
Not less than three (3) business days before the hearing, each party must file an outline of submissions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 367 of 2013
| JOSEPHINE CHARLTON |
Applicant
And
| CNH CAPITAL AUSTRALIA PTY LIMITED (ACN 069 132 396) |
Respondent
REASONS FOR JUDGMENT
A dispute arises as to the date on which the present application was filed. It is an application signed by the applicant on 17 February 2013. It was faxed by her to the Registry of the court at 17:40 on 18 February 2013. The Registry stamped it as filed on 26 February 2013. The applicant contends that it was filed no later than 19 February 2013. The respondent contends that it was filed on 26 February 2013.
The application itself applies to set aside a Bankruptcy Notice dated 21 December 2012 served on the applicant on 29 January 2013. It is common ground that the last date for compliance is 19 January 2013. It is also common ground that the last date for the applicant to apply to extend the time for compliance, or to set aside, the Bankruptcy Notice is 19 January 2013.
The applicant resides in Trundle, NSW. It is uncontentious that Trundle is a small town in the Parkes Shire of the Central West of NSW and is about 420km west of Sydney. The applicant is self-represented, describes herself as undertaking Home Duties, and is clearly an intelligent and articulate person.
Section 41(6A) of the Bankruptcy Act 1966 states:
Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) an application has been made to the Court to set aside the bankruptcy notice;
The power to extend time for compliance with a bankruptcy notice under s.33(1)(c) of the Act is expressly disallowed, and thus the authorities state that failure to comply with s.41(6A) is not a “procedural irregularity capable of cure” but “fatal to jurisdiction”: Re Shaddock; Shaddock v Commonwealth Bank of Australia (unreported Federal Court of Australia, Goldberg J, 9 April 1998). In other words this court lacks the power to set aside the bankruptcy notice unless the application was filed before the expiration of the time fixed for compliance with the requirements of the bankruptcy notice.
The respondent contends that pursuant to r.2.05(2) Federal Magistrate Court Rules 2001 the application was not filed until 25 February 2013 being the date that it was sealed. Rule 2.05(2) states:
A document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Federal Magistrates Court stamp as required by Division 2.4.
The applicant contends that, pursuant to r.2.05(3) the application was “taken to have been filed” on 19 February 2013. Rule 2.05(3) states:
However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a) if the whole document is received by 4.30pm on a day the Registry is open for business – on that day; and
(b) in any other case – on the next day the Registry is open for business.
Note Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is filed.
The court may dispense with compliance with its rules. In this regard r.1.06(1) states:
The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
The court declines to do so, however, on the facts of this case. As indicated above, failure to comply with s.41(6A) is not a procedural irregularity, it goes to the question of whether the court’s jurisdiction has been validly invoked: Emanuele v Australian Securities Commission (1997) 188 CLR 114: Diggins v ANZ Executors and Trustee Company Ltd [2007] FMCAfam 676.
Whether the application has been filed on time therefore stands to be determined by reference to Federal Magistrate Court Rules 2001 rr.2.05(2) and (3). The respondent accepts that the application was filed by facsimile, but argues that r.2.05(2) is clear on its terms ie. filing occurs when the court’s seal is affixed to the document, and thus it was filed on 26 February 2013.
The application is supported by the applicant’s affidavit sworn 15 March 2013 in which she annexes some documents that provide some explanation as to why there was a delay between the date of faxing, and the date of sealing. It is clear, for example, that the court received the application no later than 19 February 2013. It is also clear that the applicant submitted an Application for Exemption from Paying Court Fees – Financial Hardship which is dated 18 February 2013. That application was granted on 26 February 2013. The precise reason for the delay is not clear, but there is some suggestion that the registry sought further information from the applicant, and that there was a delay in communication and in the provision of that information.
Regulation 2.06 of the Federal Court and Federal Magistrates Court Regulations 2012 deals with persons exempt from paying a fee and states:
(1) If:
(a) a fee mentioned in Schedule 1 is payable by an individual in relation to a proceeding; and
(b) in the opinion of the Registrar or authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual;
the Registrar or authorised officer may exempt the individual from paying the fee.
(2) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual's income, day-to-day living expenses, liabilities and assets.
The Application for Exemption form itself gives notice to the applicant about what needs to be demonstrated in order to establish financial hardship. Relevantly the form states “where possible provide documentary evidence to support general claims…”. It also warns the applicant that the Registrar “may ask you to provide additional documentary evidence to support your claims” and the form itself contains a “Notice of request for more information”. The document attached to the applicant’s affidavit suggests such a request was made, presumably on or after 19 February but before the time of filing on the 26 February 2013. The applicant submits that it is important to note that immediately below the “Notice of request for more information” there appears the printed words: “The documents listed above should be provided within 14 days of the date on which this notice was issued”. The applicant thus contends that, as a self-represented litigant, she was under the impression that filing took place once she sent the application by facsimile, and that the date of filing could not depend on how long the registry took to process her application for exemption from fees. Indeed her assertion was that the exemption form itself in effect lulled her into a false sense of security as to filing.
There are a number of significant features about r.2.05(3). Thus:
a)It starts with the word “However”. One of the definitions ascribed to this word in the Macquarie Dictionary, Revised 3rd Edition is “nevertheless; yet; in spite of that” which clearly differentiates sub-rule (3) from sub-rule (2) and signals a different approach so far as filing of documents is concerned.
b)Whereas sub-rule (2) speaks of “a document is filed”, sub-rule (3) refers to a document “is taken to have been filed”. Thus it is a deeming provision.
c)The Note to sub-rule (3) expressly contemplates the possibility of a delay between transmission by electronic communication and the time the document is filed. The court does not, however, read the Note as limiting the interpretation of the sub-rule to just the situation of computer security firewalls. The Note in this regard is no more than an example for the purposes of s.15AD Acts Interpretation Act 1901.
d)The Federal Court Rules 2011 adopt a different approach to filing of faxed documents. Thus Federal Court Rules 2011 rr.2.21-2.25 draw the distinction between “lodging” and “filing” and, importantly, the Federal Court Rules 2011 r.2.25(3) do not contain the word “however”, unlike Federal Magistrates Court Rules r.2.05(3). Reference to the Federal Court Rules 2011 does not assist in interpreting Federal Magistrate Court Rules 2001 r.2.05(3).
The respondent submits that the application was not “accepted” for the purposes of r.2.05(3) until 26 February 2013 when it was stamped in accordance with r.2.05(2). The difficulty with this interpretation is that it renders meaningless the deeming provisions (“is taken to have been filed”) in r.2.05(3). Sub-rules (2) and (3) clearly cover different situations. The same meaning cannot be attributed to each rule.
Having regard to the above, and based on the facts of the present case, the application that was sent by facsimile on 18 February 2013 must be deemed pursuant to Federal Magistrates Court Rules r.2.05(3) to have been filed on 19 February 2013, even though the court’s stamp was not affixed until 26 February 2013. The court’s jurisdiction is enlivened under s.41(6A) of the Bankruptcy Act 1966, and the application will be listed for hearing on a future date.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 4 April 2013
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