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…
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- Case
- [2022] FedCFamC2G 94
- Decision Date
CaseChat Overview and Summary
The court examined Regulation 17(2)(b) and noted that the phrase “must be physically filed at the court in hard copy” indicated a mandatory requirement that the Default Judgment be a physical document. The court referred to the Macquarie Dictionary to understand the ordinary meaning of “physical” and “material,” concluding that the Default Judgment had to be a printed material copy. The court then interpreted the phrase “with the application” to mean that the Default Judgment must accompany the application, filed contemporaneously. This interpretation was supported by the High Court’s decision in Forrest & Forrest Pty Ltd v Wilson, which held that “accompanied by” necessitated the contemporaneous lodgement of documents. Consequently, the court found that the Default Judgment must accompany the application for registration.
Based on its findings, the court determined that the requirements of Regulation 17(2)(b) had not been met because the Default Judgment had not been physically filed with the application at the same time. The court held that the failure to comply with these requirements rendered the application invalid. As a result, the application for registration of the New Zealand judgment was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.