Forlongs Furnishings Ltd v Thom
[2022] FedCFamC2G 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Forlongs Furnishings Ltd v Thom [2022] FedCFamC2G 94
File number(s): PEG 6 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 17 February 2022 Catchwords: COURTS AND JUDGES – Trans-Tasman proceedings – application for registration of New Zealand judgment – whether court an inferior Australian court.
PRACTICE AND PROCEDURE – Trans-Tasman proceedings – application for registration of New Zealand judgment – whether filing requirements for registration met – whether judgment to be registered filed in hard copy with the application.
WORDS AND PHRASES – “federal court” – “inferior Australian court” – “superior Australian court” – “must” – “must be made” – “must be physically filed at the court in hard copy” – “physically” – “at” – “hard copy” – “with” – “accompanied by”.
Legislation: Australian Constitution, s.71
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.2.05
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss.9, 10, 131, 134
Migration Act 1958 (Cth), s.347
Migration Regulations 1994 (Cth)
Trans-Tasman Proceedings Act 2010 (Cth), ss.4, 67, 73, 105, 110
Trans-Tasman Proceedings Regulation 2012 (Cth), reg.17Cases cited: Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481
Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67; (2012) 257 FLR 237
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510; (2017) 91 ALJR 833; (2017) 346 ALR 1; (2017) 11 ARLR 117
Minister for Home Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62Texts and dictionaries: Macquarie Dictionary, 7th edition (Sydney: Macquarie Dictionary Publishers, 2017) Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submission/s: 16 February 2022 Date of hearing: 16 February 2022 Place: Perth For the Applicant: Mr P. Kyle (by leave) For the Respondent: No appearance ORDERS
PEG 6 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FORLONGS FURNISHINGS LTD
Applicant
AND: TONI RUIANGAPURAPURA THOM
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application to register a judgment under Part 7 of the Trans-Tasman Proceedings Act 2010 (Cth) be dismissed on the basis that a sealed, certified or otherwise authenticated copy of the judgment to be registered has not been physically filed at Court in hard copy in accordance with regulation 17(2)(b) of the Trans-Tasman Proceedings Regulation 2012 (Cth).
2.Reasons for Judgment be published by the Court at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
This is an application to register a judgement under Part 7 of the Trans-Tasman Proceedings Act 2010 (Cth) (“TTP Act”). The application was electronically filed in the Perth Registry of this Court on 14 January 2022, supported by an affidavit sworn 5 January 2022 by Paul David Kyle (“Mr Kyle”), the credit manager of the applicant, Forlongs Furnishings Ltd (“Forlongs”). The application seeks to register a default judgement made by the District Court of New Zealand on 27 January 2016 (“Default Judgment”). The Default Judgement is for the payment of a liquidated demand in the sum of NZ $1,646.38 by the respondent, Toni Ruiangapurapura Thom.
Part 7 of the TTP Act is about the enforcement in Australia of specified judgments of New Zealand courts and tribunals. To be enforceable the judgment has to be registered in an Australian court. An entitled person may apply to register a New Zealand judgment in an “inferior Australian court” but only one “that has the power to give the relief that is in the judgment”: TTP Act, s 67(1)(b). Forlongs is an “entitled person” who may apply to register a New Zealand judgment, it being a person in whose favour judgment was given: TTP Act, s 4. Under s 4 of the TTP Act an “Australian court” includes a “federal court” or a court of a State or Territory. This Court is a federal court created by the Commonwealth Parliament and invested with federal jurisdiction: Australian Constitution, s 71; TTP Act, s 105(1); Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), ss 131(1) and 134. This Court is an “inferior Australian court” as defined in s 4 of the TTP Act, that is, it is not the High Court of Australia and not a “superior Australian Court”, the latter being defined as the Federal Court, the Federal Circuit and Family Court of Australia (Division 1), or the Supreme Court of a State, the Australian Capital Territory, the Northern Territory, or Norfolk Island (and, in any event, probably not a superior court otherwise: contrast ss 9(1)(a) and 10(1)(a) of the FCFCOA Act)
A question arises as to whether this Court has the power to give the relief that is in the judgment. It must be doubted as to whether the Court has the power to grant relief on a simple contract claim for an amount due and payable, unless that jurisdiction is invoked or arises from the Court’s jurisdiction under statute or with respect to associated matters: FCFCOA Act, ss 131(1) and 134. It is presently unnecessary to resolve that question.
Section 67(5) of the TTP Act provides that:
(5) An application under this section must be made:
(a) in the form (if any) prescribed by the regulations; and
(b)in accordance with the requirements (if any) prescribed by the regulations; and
(c)within:
(i) 6 years after the day on which the judgment is given; or
(ii)if there have been proceedings by way of appeal against the judgment—6 years after the day of the last judgment in those proceedings; or
(iii) if, before or after the period referred to in subparagraph (i) or (ii), the entitled person applies to the Australian court for a longer period—any longer period the Australian court considers appropriate.
The application was filed within the time limit of six years.
The phrase “must be made” in the chapeau to s 67(5) of the TTP Act renders it mandatory for the requirements of s 67(5) of the TTP Act to be complied with: Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340 (“Eugene Cho”) at [24] per Judge Lucev (and cases there cited); Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67; (2012) 257 FLR 237 (“Wesco Electrics”) at [41]-[63] per Lucev FM.
Each of paras (a), (b) and (c) of s 67(5) of the TTP Act are connected by the word “and”. In Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481 (“Adams”) the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular, a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must” and the linking of each of the five objectives with the word “and” meant that each objective must be pursued by the Minister and by the Authority: Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed).
Recently, in Minister for Home Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62 (“Parata”), the Full Court of the Federal Court was dealing with a review of a cancellation decision under Part 5 of the Migration Act 1958 (Cth), and in relation to s 347(1) of the Migration Act, which is relevantly in the following terms:
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, …
… and
(c) be accompanied by the prescribed fee (if any) …
at [11] per Charlesworth and Jackson JJ, observed that it “specifies the requirements for an application for review of the decision in mandatory terms”.
It follows from the use of “must” in the chapeau to, and the use of “and” to connect the paragraphs in, s 67(5) of the TTP Act, that each of the requirements in s 67(5) of the TTP Act are mandatory and each of them must be met by an applicant for registration of a New Zealand judgment.
An application “must be made”, for the purposes of para (b) of s 67(5) of the TTP Act, “in accordance with the requirements (if any) prescribed by the regulations”. Section 110(a) of the TTP Act provides for the making of regulations prescribing matters required or permitted by the TTP Act to be prescribed.
Regulation 17 of the Trans-Tasman Proceedings Regulation 2012 (Cth) (“TTP Regs”) prescribes the manner in which an application for registration of a New Zealand judgment may be made, as follows:
17 Application for registration of NZ judgement
(1) For paragraph 67(5)(a) of the Act, Form 5 is prescribed.
(2) For paragraph 67(5)(b) of the Act:
(a)if the court is able to receive an application by fax or email—the application may be filed by fax or email; and
(b)a sealed, certified or otherwise authenticated copy of the NZ judgement must be physically filed at the court in hard copy:
(i) with the application; or
(ii) if the application is filed by facsimile or email—within 15 working days after the application is filed.
The phrase “must be physically filed at the court in hard copy” must be read as a whole. The use of “must” means it is a mandatory requirement: see Adams, Eugene Cho and Wesco Electrics cited at [6]-[7] above, that the judgment to be registered be “physically filed at the court in hard copy”. A requirement to “physically file” a document would appear to require that the document, here the copy of the Default Judgment, be a physical, that is a “material”, document, or a document having physical substance: see the definitions of “physical” “2. of or relating to material nature, material” and “material”, “1. the substance or substances of which a thing is made or composed”: Macquarie Dictionary, 7th edition (Sydney: Macquarie Dictionary Publishers, 2017) at pp 1131 and 928 respectively (“Macquarie Dictionary”). Weight is leant to this meaning by the fact that the judgment to be registered must be filed “at the court”; “at” being a preposition used to signify location: Macquarie Dictionary, p 85, and in “hard copy”, a “hard copy” being “a printed copy of material”: Macquarie Dictionary, p 694. Thus, the phrase “must be physically filed at the court in hard copy” requires a printed material copy of the judgment sought to be registered to be filed with the court in which the application is being filed.
In this case, it is the Default Judgment that must be physically filed with this Court. The Default Judgment must be filed “with the application”: TTP Regs, reg 17(2)(b)(i). The Court now turns to the question of what does it mean for a document to be filed “with” another document. The word “with” relevantly means “1. Accompanied by or accompanying”: Macquarie Dictionary, p 1725. On its plain meaning, the phrase “with the application” therefore appears to require that the Default Judgment accompany the application, that is, that it be filed contemporaneously with the application. That approach is consistent with current authority: in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510; (2017) 91 ALJR 833; (2017) 346 ALR 1; (2017) 11 ARLR 117 (“Forrest”) the High Court held that provisions of the Mining Act 1978 (WA) which provided that an application for a mining lease shall be accompanied by, relevantly, a mineralisation report, meant that a mining warden did not have jurisdiction to hear an application for a mining lease where the application for the mining lease was not accompanied by a mineralisation report, and that the plain meaning of the words “accompanied by” necessitated the contemporaneous lodgement of the application for a mining lease and the mineralisation report: Forrest at [26], [67], [70] and [72]-[73] per Kiefel CJ, Bell, Gageler and Keane JJ. In Eugene Cho, this Court considered cases concerning the meaning of the words “accompanied by” in the Migration Regulations 1994 (Cth) and various schedules thereto setting out criteria for the grant of particular visas, and at [50] per Judge Lucev found that:
The above review of the cases concerning “accompanied by” demonstrates that the most recent cases in the High Court, the Full Court of the Federal Court, the Federal Court (comprised of a single judge), and this Court, dealing with not dissimilar provisions in the Migration Regulations, have all taken the view that the phrase “accompanied by” in cl 485.223 of Sch 2 to the Migration Regulations means that the criteria is a time of application criteria.
and went on to conclude, at [52] per Judge Lucev that:
… “accompanied by” in its ordinary meaning as it appears in reg 5.19(2)(b) of the Migration Regulations is a time of application criteria.
The Court, therefore, concludes that as “with” means “accompanied by”, and as “accompanied by” means contemporaneously with, the requirement to physically file a hard copy of the Default Judgment “with the application” meant that a hard copy of the Default Judgment had to be filed at the same time as the application was electronically filed on 14 January 2022. This was not done.
The Court notes that there is no provision in the TTP Regs, or the TTP Act, which allows for an extension of time for the filing of the hard copy of the registered judgment, here the Default Judgment. That is to be contrasted with provisions which allow, for example, for an extension of time in which to file the application itself: TTP Act, s 67(5)(c)(iii), or for the giving of a notice of registration of a judgment: TTP Act, s 73(3)(b).
In this case, the application on a Form 5 was electronically filed on 14 January 2022 together with Mr Kyle’s Affidavit. Annexures PK-9 and PK-10 to Mr Kyle’s Affidavit are what appears to be, on their face, a duplicate of the Default Judgment appearing to bear a stamp of the District Court of New Zealand at Hamilton, and is said by Mr Kyle to be a “copy of the Registered Judgment filed and accepted in the Hamilton District Court, New Zealand”. The Default Judgment in Mr Kyle’s Affidavit is not, however, a hard copy physically filed at the Court with the application.
Both the application and Mr Kyle’s Affidavit were filed electronically in this Court. Rule 2.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) mandates the filing of documents “by electronic communication as permitted by the Court, unless it is not reasonably practicable to do so”. Rule 2.05(2) of the GFL Rules provides that where it is not reasonably practicable to file a document by electronic communication, then, in order of preference, documents are to be filed by emailing the documents to the Registry, delivering the documents to the Registry, sending the documents to the Registry by post, or faxing the documents to the Registry.
The Court notes that r 2.05(1) and (2) of the GFL Rules distinguish between documents filed electronically, by facsimile, by email and by post. In order to file the Default Judgment with the application those documents could have been filed by Forlongs by post, but that was not done. Regulation 17(2)(b)(ii) of the TTP Regs also provides that an application may be filed by facsimile or by email, in which case the hard copy of the judgement to be registered, here the Default Judgment, may be physically filed in hard copy within 15 working days of the application being filed. In this case, the application could have been filed by facsimile or email and the Default Judgment sent by post in hard copy, to be physically filed within 15 working days of filing by facsimile or email, but that was not done. Assuming for present purposes that electronic filing equates with filing by facsimile or email (which it does not because they are distinguished by r 2.05(1) and (2) of the GFL Rules), Forlongs might have posted the hard copy of the Default Judgment to be physically filed within 15 days of filing by facsimile or email, that is by 7 February 2022.
At a first directions hearing on 21 January 2022 the Court raised the requirement for a sealed, certified or otherwise authenticated copy of the Default Judgment to be physically filed at the Court in hard copy. Subsequently, it would appear that Forlongs posted an authenticated copy of the Default Judgment to the Perth Registry of the Court. The Court has marked as Exhibit 1 a copy of a consignment note and receipt issued to Forlongs on 24 January 2022 by NZ Post for documents described as “legal documents”, dispatched to this Court at its Perth Registry street address. As of the day of the second directions hearing (16 February 2022), those documents had not been received by the Perth Registry of the Court.
In circumstances where a hard copy of the judgment to be registered, here the Default Judgment, had to be physically filed with the application, or at the very least (equating electronic filing to filing by fax or email) within 15 days of the filing of the application, and where no provision exists to extend the time for filing prescribed by reg 17(2)(b) the TTP Regs, it follows that the application to register the Default Judgment under Pt 7 of the TTP Act must be dismissed on the basis that a sealed, certified or otherwise authenticated copy thereof has not been physically filed at the Court in hard copy, in accordance with reg 17(2)(b) of the TTP Regs.
On 16 February 2022 an order was made dismissing the application for the above reasons, and an order was also made that Reasons for Judgment be published from Chambers at a later date. These are those Reasons for Judgment.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 17 February 2022
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