Frost (Deceased) & Whooten
[2018] FamCAFC 177
•17 September 2018
FAMILY COURT OF AUSTRALIA
| FROST (DECEASED) & WHOOTEN | [2018] FamCAFC 177 |
| FAMILY LAW – APPEAL – JURISDICTION – Matrimonial cause – Whether the wife’s Initiating Application sufficiently identified the matrimonial cause relied upon to invoke the jurisdiction of the Family Court – Where the primary judge found that the Initiating Application sought property orders pursuant to s 79 of the Family Law Act 1975 (Cth) – No error demonstrated. FAMILY LAW – APPEAL – JURISDICTION – Death of a party – Electronic filing – Where the wife electronically lodged an Initiating Application with the Family Court after the deadline prescribed in r 24.05(2) of the Family Law Rules 2004 (Cth) and the husband died several hours later – Application of r 24.05(2) – Meaning of “filed” – Distinction between “received by the registry” and “filed” – Whether rules can have a substantive effect on parties’ rights – Whether rules can be applied to create or invoke jurisdiction – Where the primary judge erred by deeming the Initiating Application to have been filed at the time it was electronically received by the Court as he lacked the jurisdiction to do so – Appeal allowed. |
| Australian Constitution s 76 Bankruptcy Act 1966 (Cth) s 41(7) Family Law Act 1975 (Cth) ss 4, 8(1), 31(1)(a), 39(1),79, 79(8), 82, 94(1A), 94AAA(5), 123 Family Law Rules 2004 (Cth) rr 1.09, 1.12, 1.14, 2.01, 4.02, 13.04, 22.03, 24.05, 24.05(2), 24.10 Federal Court Rules 2011 (Cth) r 2.25(3) Supreme Court Rules 1970 (NSW) Part 20 r 1 |
| Angus Fire Armour Australia Pty Ltd v The Collector of Customs(NSW) (1988) 19 FCR 477; [1988] FCA 339 Justice James Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] Federal Judicial Scholarship 15 |
| APPELLANTS: | Mr Swallow and Mr Banford as the Legal Personal Representatives of the Estate of the Late Mr Frost |
| RESPONDENT: | Ms Whooten |
| FILE NUMBER: | MLC | 11742 | of | 2016 |
| APPEAL NUMBER: | SOA | 93 | of | 2017 |
| DATE DELIVERED: | 17 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren DCJ, Aldridge & Kent JJ |
| HEARING DATE: | 21 June 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 975 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Mr Bartfeld QC with Ms Renwick |
| SOLICITOR FOR THE APPELLANTS: | KCL Law |
| COUNSEL FOR THE RESPONDENT: | Mr Matta |
| SOLICITOR FOR THE RESPONDENT: | Nevett Ford |
Orders
The appeal is allowed.
Orders 1 and 3 of the orders made by Cronin J on 29 November 2017 are set aside.
The Initiating Application of Ms Whooten received electronically by the Court on … 2016 is dismissed for want of jurisdiction.
The Court grants to the appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellants in respect of the costs incurred by them in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Frost (Deceased) & Whooten has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 93 of 2017
File Number: MLC 11742 of 2016
| Mr Swallow and Mr Banford as the Legal Personal Representatives of the Estate of the Late Mr Frost |
Appellants
And
| Ms Whooten |
Respondent
REASONS FOR JUDGMENT
The Appeal
Ms Whooten (“the respondent”) and Mr Frost (“the deceased”) were married but separated. One day in late 2016 the deceased suffered a serious injury and was taken to hospital, where he died at about 11.00 pm the next day.
On the same day the respondent electronically forwarded an Initiating Application to the Family Court of Australia by uploading it to the Commonwealth Courts Portal, seeking to file it under r 24.05(1)(a)(iv) of the Family Law Rules 2004 (Cth) (“the Rules”) which permits electronic filing. It was said that the application sought a division of property pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”). It was electronically received at 7.40 pm. By virtue of r 24.05(2), it was taken to have been received by the filing registry on the next day when the filing registry was open; that is, the day after the deceased’s death.
This combination of events caused an immediate difficulty because, as both parties accepted, proceedings under s 79 must be commenced at a time when both parties to the marriage are alive (although, if properly commenced, they can be continued after the death of one party in accordance with s 79(8) of the Act).
The appellants, who are the executors of the deceased’s estate, objected to the jurisdiction of the Court, asserting that the deceased had died the day before the time the Initiating Application was taken to have been filed. They also contended that jurisdiction was lacking because the orders sought in the application did not, on their face, invoke any matrimonial cause.
On 30 August 2017, the respondent filed an Amended Application in a Case seeking, relevantly for the appeal, the following order:
That the Wife’s Initiating Application (Family Law) and Financial Statement sent for electronic filing at 7.39pm, [the day of the deceased’s death], be taken to have been received by the filing registry on [the day of the deceased’s death] by extending time pursuant to Rule 1.14 of the Family Law Rules (2004).
An Amended Response filed the same day sought the dismissal of both the Initiating Application and the Amended Application in a Case for want of jurisdiction.
On 29 November 2017, Cronin J rejected the appellants’ contentions and made the following order:
That the wife’s application initiating proceedings received electronically by the Court at 7.40 pm on [the day of the deceased’s death] be deemed to have been filed at that time notwithstanding rule 24.05(2) of the Family Law Rules 2004.
His Honour considered that this order should be made because otherwise the strict application of the Rules would deny the respondent the right to litigate, which would be an injustice (at [52]). However, this appeal is primarily concerned with whether or not the Court had jurisdiction to make any order at all and not whether the circumstances worked an injustice upon her.
The appellants advance two grounds of appeal in challenge to the making of this order:
1.The Primary Judge erred in law in holding that the Court had jurisdiction to determine the Respondent’s Initiating Application purportedly filed at 7:40pm on [the day of the deceased’s death] (‘the Respondent’s Initiating Application’) for the following reasons:
a.the Respondent’s Initiating Application was filed out of time; and
b.the Respondent’s initiating Application failed to specify a matrimonial cause.
2.The Primary Judge erred in law and in the exercise of his discretion in the application of Rule 1.09 and Rule 1.14 of the Family Law Rules 2004 by deeming the Respondent’s Initiating Application to be filed before the death of the deceased husband.
We turn first to the second aspect of Ground 1.
Did the Court lack jurisdiction because the Initiating Application failed to specify a matrimonial cause?
The appellants submit that “[t]o invoke the Court’s jurisdiction to grant relief, the Court must have before it a ‘matter’” within s 76 of the Constitution which, in this case, must be a matrimonial cause as defined by the Act. We accept that this is so.
The Court is given jurisdiction in respect of “matrimonial causes” by s 31(1)(a) and s 39(1) of the Act. Matrimonial causes are defined in s 4(1) of the Act. The definitions relevant for present purposes are paragraphs (c) and (ca), which state:
(c)proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; …
(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i)arising out of the marital relationship;
(ii)in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii)in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104 …
It follows that the present application must raise a matrimonial cause within that definition as the subject matter of the proceedings in order to invoke the jurisdiction of the Court. This accords with what was said by Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ in In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 – 266 where their Honours said:
It was suggested in argument that “matter” meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word “matter” in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.
If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one.
See also Fencott v Muller (1983) 152 CLR 570 at 603.
The Initiating Application sought only one final order, which was:
That the Applicant Wife be excused from particularising her final orders sought until after the Respondent Husband has made full and frank disclosure in this matter.
The appellants submit that this order does not identify a relevant matrimonial cause as it plainly does not seek orders altering the property of the respondent and the deceased. Thus, they argue, it follows that the Court’s jurisdiction was not invoked by the Initiating Application regardless of the time it was filed.
The primary judge rejected this submission, saying:
45.Jurisdiction must be distinguished from power. The jurisdiction in this case is enlivened by a party filing an application seeking a matrimonial cause. Did the wife’s application seek that the court exercise its jurisdiction in relation to “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them”? Clumsily though the words may have been expressed, I accept that the wife invoked the jurisdiction seeking orders with respect to property. Her initiating application refers to the “type” of orders sought. The form describes those as “Financial (Property and/or Maintenance)”. She sought to be excused from pleading particularised relief until after disclosure. Combined with the reference in the form to the type of orders she sought, her proposed order was a request not to plead with particularity but her application was unashamedly seeking that there be a property settlement.
46.The first question to be answered is whether the jurisdiction was invoked seeking orders that fit within the description of a matrimonial cause. Having regard to the matters above, I am satisfied that the nature of the wife’s application was an application seeking relief within the meaning of s 4(1)(ca) and that she thereby validly invoked jurisdiction.
(Original emphasis)
We must therefore look to the material the respondent sought to file to determine the nature of the matter before the Court. In most courts that would involve an examination of the pleadings. This is because it is the substance of the dispute joined between the parties, rather than its form, which is determinative of the engagement of federal jurisdiction. The position is well summarised in the observations made by Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 472 – 475. Those observations include the following (commencing at 473):
It will be necessary in order to resolve the question posed for the Court in these cases to identify and express the “matter” which was before the Court in each case. Indeed, it is frequently necessary in order to determine the range and extent of the federal jurisdiction exercisable by a court having or invested with federal jurisdiction to determine what is the “matter” involved in the case. For this purpose, the matter will not be confined to the “cause of action”, if any be asserted by the moving party, cause of action in the sense of a particular legal basis for the relief which is sought by the one party or, for that matter in the case of a cross-action or counterclaim, by either of the parties. No doubt there are cases in which an asserted cause of action in that sense will circumscribe the matter before the court: but that is neither universally nor necessarily so. Indeed, as I have remarked earlier, in judicature pleading, fact pleading as it was introduced in the judicature system, there is no necessity to assert or identify a legal category of action or suit which the facts asserted may illustrate, involve or demonstrate and on which the particular relief claimed is based or to which it is relevant. It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts. Nor will the nomination of particular remedies by a party necessarily indicate the extent of the matter before the Court: nor will the issues raised by the pleadings necessarily mark out the parameters of the matter. The identification of the matter is very much a question of substance and not of form. The facts alleged by either or any of the parties and their consequences will in the last resort be the determinant of what is relevantly the matter. Of course, in determining that question, the nature of the relief sought and perhaps of the legal right or defence if any be asserted may be of assistance, but, as I have indicated, not necessarily definitive.
(Emphasis added)
To the same effect are the observations made by Allsop CJ (as his Honour now is), writing extra-curially in a speech titled “An Introduction to the Jurisdiction of the Federal Court of Australia”, as follows:
… The “matter” is the justiciable controversy between the actors to it comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between or amongst them. It is not the cause or causes of action brought by the plaintiff. A justiciable controversy is identifiable independently of proceedings brought for its determination. It is the whole controversy in respect of which it is the function of the court or courts (the one controversy may be fought in different places) exercising the judicial power of the Commonwealth to quell. It is the “subject matter for determination in a legal proceeding”.
(Justice James Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] Federal Judicial Scholarship 15)
However, proceedings in this Court do not ordinarily proceed by pleadings but by way of application and affidavit. In the peculiar circumstances of this case, we cannot look to the affidavits because an applicant is precluded from filing them at the same time as the Initiating Application (r 4.02 of the Rules). None was filed.
We must therefore look at the Initiating Application itself to determine the nature of the controversy raised by it, as that is the only material available from which to identify the parameters of the matter.
The Initiating Application that the respondent electronically forwarded to the Court is an 18 page document. Many of these pages require the person completing the application to answer questions about the status of the parties and the nature of the relief sought or to provide information as set out in the pro forma application.
On the first page of the application itself, there is a heading which says “Part A: The orders sought”. That is followed by the words “1. Type of orders sought (mark all boxes that apply)”. Underneath, five boxes appear with the following words:
·Children (parenting)
·Child Support
·Declaration
·Financial (property and/or maintenance)
·Other (specify)
The respondent placed a cross in the box marked “Financial (property and/or maintenance)” and no other boxes. It was this that led the primary judge to find at [45] that she “was unashamedly seeking that there be a property settlement”.
There are, however, other aspects of the Initiating Application that bear on this question.
The answers to questions 12 and 22 describe the parties as “wife/mother” and “husband/father” respectively. The answers to questions 25 to 28 indicate that the parties were married, had separated but had not yet been divorced. It can be seen therefore that the basis of any “financial” orders is the marital relationship, and not a de facto relationship. That is indicated by the answers to Part H denying such a relationship.
The answers to questions 51 and 53, under the heading “Part G: For property and/or spouse/de facto spouse maintenance applications” make it plain that no financial agreement was relied upon and that neither party was bankrupt, subject to a personal insolvency agreement or a debtor in bankruptcy proceedings.
The one order that is sought refers to the need for full and frank disclosure by the deceased. Rule 13.04 of the Rules requires a party to a “financial case” to make full and frank disclosure of his or her financial circumstances. A “financial case” is defined by the Dictionary to the Rules as including an application “relating to the maintenance of one of the parties to a marriage” and “relating to the property of the parties to a marriage”. The reference to disclosure is consistent then with both an application for maintenance and property settlement.
The respondent submits that by a process of elimination it can be seen that the respondent was seeking orders for “property” and maintenance arising out of the marital relationship or, in other words, seeking an order within the meaning of paragraphs (c) and (ca) of the definition of matrimonial cause in s 4(1) of the Act. The former abates on the death of the deceased as it cannot be continued (s 82), unlike a claim under s 79.
However, at the time the application was electronically received the deceased was still alive. Accepting for the sake of the present argument that this is the relevant moment the Initiating Application was filed, we consider that as a matter of substance it sought orders in a financial case for both property settlement and maintenance – that is, orders that fell within both paragraph (c) and (ca) of the definition of matrimonial cause. Jurisdiction was thus invoked. Even if the maintenance aspect fell away on the death of the deceased, the property aspect remained.
The appellants’ senior counsel, correctly in our opinion, accepted that the words “property settlement” or some such without reference to a more specific order or even referring to any general division of property, if sought as an order, would have sufficed to identify the relevant matrimonial cause (definition (ca)) and thus invoke the jurisdiction of the Court. Presumably a bald claim for “maintenance” would have the same effect. That, in our view, is little different from drawing the same inference from looking at the document as a whole.
This aspect of the ground has not been established.
It turns then to consider whether the Initiating Application, which we have found properly invoked a matrimonial cause, was filed within time.
Was the Initiating Application filed out of time?
It is axiomatic that a court can only act if it has jurisdiction to do so. As we have already explained, the Court does not have jurisdiction to entertain proceedings under s 79 of the Act unless, at the time those proceedings were commenced, both parties to the marriage are still living. This was explained by Brennan J in Fisher v Fisher (1986) 161 CLR 438 at 457:
Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within par. (ca) of the definition of “matrimonial cause” in s. 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s. 79(1) …
(Emphasis added)
The appellants submit that by application of r 24.05(2), the Initiating Application was filed on the day after the deceased’s death and therefore the Court had no jurisdiction under s 79 of the Act. Thus, the submission continues, the Court could not make any orders whatsoever (other than to dismiss the application for want of jurisdiction), including the orders that were made deeming the application to have been filed before the time of death.
For her part, the respondent submits that the Initiating Application was received by the Court at a time when it had jurisdiction: that is, while the deceased was still alive. As it was the application of the Rules that deemed it to have been filed at a later time, she submits that the Rules can similarly be applied to overcome that effect and thus the primary judge was empowered to make an order deeming the application to have been filed at the time of its electronic receipt.
Rule 24.05 provides:
24.05How a document is filed
(1)A document is filed if:
(a)the document is:
(i)delivered to and received by the registry;
(ii)posted to and received by the registry;
(iii)sent to the court by electronic communication under rule 24.06 (facsimile) and received by the registry;
(iv)sent to the court by electronic communication under rule 24.07 (e‑mail and Internet) and received by the court; or
(v)accepted for filing by a judicial officer in court during a court event; and
(b)the filing fee (if any) is paid.
(2)A document that is sent for filing by electronic communication after 4.30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open.
It is not in issue that the requirements of r 24.07 were met.
The Court’s records show that the Initiating Application was received at 7:40 pm on [the date of the deceased’s death]. It was also noted as being “Filed on: [the date of the deceased’s death] 07:39 PM”.
When r 24.05(2) is applied, the Initiating Application is taken to have been filed the day after the deceased died.
This, no doubt, led to the respondent filing an Application in a Case seeking that the time for filing be extended.
Can a rule that has a substantive effect on parties’ rights validly be applied?
Section 123 of the Act empowers the judges of the Court, or a majority of them, to make Rules of Court “providing for or in relation to the practice and procedure to be followed in the Family Court”. The Court cannot make rules beyond the scope of that authority. Consequently, rules that “(i) vary or depart from, and are thus inconsistent with, the positive provisions of the Act such as s 79A(1), or (ii) go beyond the field of operations marked out by the Act” are not authorised by that section: Harrington v Lowe (1996) 190 CLR 311 (“Harrington”) at 324 – 325. There was no suggestion that r 24.05(2) did so.
Yet, rules can have a substantive effect, as explained by Kirby J in Harrington at 341 – 342:
The task of a court is to characterise a rule which is challenged on the ground that it has exceeded the legislative grant of power. Such a rule may exhibit the appearance of having a dual character: pertaining in some ways to procedural matters but in other ways having an effect on substantive rights. In deciding how to characterise the challenged rule, caution should be exercised in adopting definitions of what is “procedural” devised for other purposes of the law, eg in private international law. The purpose of the classification here must be kept in mind if it is to be accurately performed. That purpose, relevantly, is to decide whether the subject matter of the challenged rule is no more than a procedural pre-condition to the enjoyment of rights judicially recognised or an abrogation of substantive rights, beyond the power of the subordinate law-maker. The mere fact that a procedural rule has effect upon substantive rights is not enough to strip it of its procedural character. But if the rule goes beyond the provision of the means by which substantive rights are to be enforced or protected, the decision-maker will be entitled to conclude that what has been done, under the guise of a procedural rule, is, in fact, impermissibly to alter substantive rights. By law, that is forbidden to the rule-maker. It is reserved to those with the power to alter substantive rights. This means principally a legislature, the Executive acting under delegated power clearly conferred or judges acting in the time-honoured fashion of the common law. It is not to be done in a quasi-legislative way by rule-making.
(Footnotes omitted)
An obvious example of a rule having an effect on substantive rights appears in Harrington itself. Order 36A, r 5(2) of the then Family Law Rules fixed a limit of seven days for an application to the court to review the decision of a registrar. The majority held at 321 that the seven day limit, when combined with other rules permitting extension of that period or providing relief from the Rules, did not impermissibly inhibit the constitutional requirement of the exercise of control by the Family Court over the exercise of delegated powers by registrars.
A similar example is r 22.03 which requires a Notice of Appeal to be filed within 28 days of the orders the subject of the appeal. The relevant statutory provisions, s 94(1A) and s 94AAA(5) of the Act, permit the making of a time limit but do not specify a time.
Another example is afforded by (the now repealed) Part 20 Rule 1 of the Supreme Court Rules 1970 (NSW) which permitted the Court to order that, at any stage of the proceedings, a party may have leave to amend a document. It was consistently held that the effect of that rule was that any amendment took effect from the original date of the document. Thus a new cause of action was able to be added by amendment, despite the period prescribed by a statute of limitations having expired at the time the order permitting the amendment was made: see, for example, Baldry v Jackson [1976] 2 NSWLR 415; McGee v Yeomans [1977] 1 NSWLR 273 and Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166.
Each of these rules has a substantive effect notwithstanding, in the words of Kirby J in Harrington at 341, they were “no more than a procedural pre-condition to the enjoyment of rights”.
Clearly then, rules can provide for the manner and timing of the filing of documents; indeed, such rules are essential to the operation of any court. The rules can therefore have an indirect effect of the substantive rights of parties if, for example, a party is unable to comply with the time limits for initiating proceedings or the form of the documents imposed by the rules.
What does r 24.05 mean?
It is first necessary to determine what is meant by “file”. The Dictionary to the Rules unhelpfully begs the question by defining the word as meaning “to lodge in a court registry (see Part 24.2)”.
Rule 24.05(1) provides, in the various circumstances set out in the Rule and subject to sub-rule (2), that a document is filed when it is received by the Court.
Filing is the word “traditionally used to describe the act or process of placing documents in the records of courts or registries”: Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 (“Purden”) at 515.
There can be too, depending upon any relevant legislation and rules of court, a distinction between receipt and presentation on the one hand and filing on the other. The first is the act of the party. The second is the act of the Court: Purden at 515. This distinction has been maintained in other contexts: see, for example, Angus Fire Armour Australia Pty Ltd v The Collector of Customs(NSW) (1988) 19 FCR 477.
Sub-paragraphs 24.05(1)(a)(i) and (ii) of the Rules appear to maintain this distinction by referring to “delivered to and received by the registry” and “posted to and received by the registry” respectively.
This accords with the traditional notion of filing and, indeed, the derivation of this use of the word. A document was filed when placed upon the file or nail that held together the documents in a matter. In DPP v His Honour Judge Fricke [1993] 1 VR 369 at 372 the Victorian Court of Appeal discussed the meaning of “filing” and said:
What is the act of filing? We refer to what was said by Stout C.J. in Re Commercial Union Assurance Co. (Ltd.) (1899) 18 N.Z.L.R 585, at p…588, in a passage recently quoted by Rogers A.J.A. in Beecham (Aust) Pty. Ltd. v. Roque Pty. Ltd. (1987) 11 N.S.W.L.R. 1, at p. 10: “ ‘ . . . What is the meaning of the word ‘filed’? Filing, it has been said, is the means adopted of keeping Court documents (see Tomlin’s Law Dictionary and Sweet’s Dictionary). The method of filing, or of putting the documents on a file of thread, wire, or string, has, in all Courts, it is said, but the English Bankruptcy Court, been discontinued, but the word has been kept. In its primitive meaning ‘filing’ means putting the documents on a file (see American and English Encyclopedia of Law: Title ‘File’); but now documents are kept together by other methods. ‘Filing’ now really means depositing in a Court office. It has, in my opinion, acquired this secondary meaning; and in Wharton’s Law Lexicon it is said that ‘to file’ means to deposit at an office” see also Hunter v. Caldwell 10 Q.B. 69 at 80. I am bound, in my opinion, to interpret the word ‘filed’ in its popular and usual sense. In none of the Supreme Court offices of this colony are any documents filed, using that word in its primitive sense.’” If the word “file” be used in its primitive sense, it must be the registrar or his clerks who alone can “file” the document. In its popular and usual sense, “filing” means no more than depositing the document at the relevant court office for the purpose of its use in the court.
Thus it does not automatically follow that a document is filed at the same time it is presented or received. This is consistent with r 24.10(1) which empowers a registrar or judicial officer to reject a document “filed or received for filing”.
In the present case, by the operation of r 24.05(2), the Initiating Application was taken to be filed on the day after the deceased died (notwithstanding the automatically issued note placed on it to the effect it was filed the day before). Thus, on the face of the matters as they then stood, the Court had no jurisdiction to proceed as there were then no proceedings between the parties to the marriage as one had died the day before.
Such a conclusion is consistent with Gornalle and Gornalle (1993) FLC 92-334 (accepting that the rules as to filing were then quite different). An application was received by the registry and date stamped 21 July 1989, which was the last available day for its filing. Order 7 r 9(4) provided that an application shall not be filed “unless there is filed with the application an affidavit in accordance with Rule 16”. That affidavit was filed on 30 August 1989. A registrar opened a file in the proceedings on 1 September 1989, which was found to be the date of filing.
Butler J found that “[t]he acts of lodgement and filing are not necessarily contemporaneous” and concluded at 79,540:
However in this case the Registrar did not open a file, and did not date the body of the document as filed on 21st July 1989, for the very good reason that the necessary affidavit in support was lacking. By virtue of Order 7, Rule 9(4) the Registrar was under a duty or obligation not to file an application until the affidavit in support had been lodged. Indeed, the Rule forebade him from doing so. Accordingly, the lodgment was accepted, but no act of filing was carried out. The delivery of the application to the Registry, without the affidavit in support, could not invoke the jurisdiction of the Court.
Thus the Rules determined when the application was taken to be filed. On the day it was filed the Court had no jurisdiction to determine the matter and the application was dismissed
Section 39(1) of the Act permits a matrimonial cause to be “instituted” in the Family Court. Rule 2.01 of the Rules provides that a person starting a case must file an application as set out in the table in that rule.
It follows that a case is started – or “instituted”, to use the language of s 39 – when the requisite application is filed.
This, in turn, leads to the conclusion that as the application was filed on the day after the deceased died, there was no matrimonial cause that could be invoked and that the Court had no jurisdiction. The only order that the Court could make was one dismissing the application for want of jurisdiction.
This then, in our opinion, is an example of a rule having a substantive effect as we discussed earlier.
Did the primary judge err in law by applying the Rules to deem that the Initiating Application was filed at the time it was electronically received by the Court?
The respondent filed an Application in a Case seeking an order that her Initiating Application be taken to have been received on the date of the deceased’s death “by extending time pursuant to Rule 1.14”.
The question then arises as to whether the primary judge had the power to apply the Rules to deem that the application was filed before the deceased’s death. This question can be expressed in many ways.
The appellants focus on the jurisdiction of the Court and when it was engaged. They contend for the position that at the time the Initiating Application was filed, which was taken to be the day after its electronic receipt, there were no proceedings properly before the Court which invoked, or could invoke, a matrimonial cause; thus, the Court had no jurisdiction. It follows, therefore, that there were no extant proceedings in which the Rules could have any application.
For her part, the respondent contends that the Initiating Application was received by the Court at a time when it did have jurisdiction and that as it was a rule that deemed it to be filed at a later time, r 1.14 of the Rules can apply to overcome that effect.
Rules 1.09, 1.12 and 1.14 provide:
1.09 Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a)a legislative provision does not provide a practice or procedure; or
(b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
1.12 Court may dispense with Rules
(1)These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
(3)In considering whether to make an order under this rule, the court may consider:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been promptly made;
(d)whether non‑compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.
1.14 Shortening or extension of time
(1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
The primary judge acted under rr 1.09 and 1.14, saying:
61.Chapter 24 of the rules cannot work an injustice created as the result of a technicality. Such a technicality would impede a just outcome.
62.Rule 1.14 therefore permits the alteration of time here. Rule 1.09 also provides that if the court is satisfied that if a difficulty arises or a doubt exists in relation to a matter of practice or procedure, the court may make such order as it considers necessary.
63.I find in the circumstances that the court should treat the wife’s application as having been filed at the time that it was received by the court electronically.
The parties agreed that r 1.12 was the more apt rule. We too agree. However, nothing turns on this – if the Court had jurisdiction, all three of the rules applied.
If the effect of r 24.05(2) is that the Initiating Application was filed on the day after the deceased’s death, as we have found it is, the Rules have no application. The jurisdiction has not been invoked by proceedings asserting a matrimonial cause. As there are no competent proceedings under the Act, there is no scope for the application of the Rules.
This is consistent with the reasoning in Norton & Locke (2013) FLC 93-567 at [16] – [19], albeit in a very different context.
As Harrington identified, rules cannot alter or vary or be used to alter or vary the parties’ substantive rights. It follows, then, that the Rules cannot be used so as to provide to a person a substantive right contrary to the operation of the Act. For example, if the Initiating Application in this case had been unequivocally filed on the day after the deceased’s death, the operation of the Act meant that there was no matrimonial cause before the Court. The Rules could not be used to vary the time for filing or deprive the Rules of operation so as to provide the respondent with a remedy that, otherwise, had ceased to exist.
Therefore, if the Court does not have jurisdiction in a matter because no justiciable matrimonial cause is before it, it cannot use the Rules to extend or vary time so as to acquire that jurisdiction. To do so would be to alter the parties’ substantive rights and would, in effect, create a cause of action where none then existed. The effect of the order would be to subject the deceased’s estate to proceedings under s 79 notwithstanding that the period in which those proceedings could be commenced – that is, during the life of both parties to the marriage – had expired.
Nonetheless the respondent submits that the electronic receipt of her application at 7.40 pm on the date of the deceased’s death of itself invoked the jurisdiction of the Court and hence permits the operation of r 1.12. However, as we have said, s 39 of the Act requires proceedings to be instituted. How those proceedings are to be instituted is a matter for the Rules. Under the Rules the application was not instituted at a time when the Court had jurisdiction. Merely sending the application to the Court and having it received by it was not sufficient.
In reality the position of the respondent is little different from a person who intends to file a document on the last day provided for by, in this case, the Act itself, and through misfortune is unable to arrive whilst the registry is still open. Leaving the document at the counter would not be to file it.
The rules of the Federal Court of Australia as to electronic filing are similar to those of the Family Court. In particular, r 2.25(3) of the Federal Court Rules 2011 (Cth) provides that if a document is electronically received after 4.30 pm, it is taken to have been filed on the next day.
Under the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) there is a difference between presentation and filing. The Federal Court has held that a petition or other application, which has as a critical date lodging or presentation, is lodged or presented at the time it is electronically received and not when, according to the Rules, it is taken to have been filed: Ramsay Health Care Australia Pty Ltd v Compton (No 2) [2016] FCA 691 at [17] and [18] (these findings were not challenged on the appeal: Ramsay Health Care Australia Pty Limited v Compton (2016) 247 FCR 387 at [9]).
In Kimber v The Owners of Strata Plan No 48216 (No 2) [2018] FCA 406, Markovic J said:
157.By analogy, in my opinion, the application to set aside the Bankruptcy Notice was made when it was lodged. The act of filing is an act of the Court and not of the party, in this case Ms Kimber. The Act does not require an application to set aside a bankruptcy notice to be filed. Rather it is required to have been made. That is done when it is delivered or handed to and accepted by an officer of the Court or relevantly when it is lodged electronically and “accepted for filing under the Court’s Rules”.
In Nugawela v Deputy Commissioner of Taxation [2016] FCA 578 the Court had to consider the effect of an application under s 41(7) of the Bankruptcy Act to set aside a bankruptcy notice. Such an application, according to that section, must be made before the expiration of time for compliance with the bankruptcy notice. On the last day for compliance with the notice, at 4.39 pm, Dr Nugawela electronically forwarded his application to the Registry.
The issue before the Court was when Dr Nugawela “applied to the Court” pursuant to s 41(7) of the Bankruptcy Act.
Dr Nugawela argued that by electronically filing the document he had thereby applied to the Court. McKerracher J said, correctly in our respectful opinion:
37.Although counsel’s argument is attractive, I consider there are difficulties with it. First, it is difficult to discern any policy consideration which would favour documents filed electronically out of business hours being treated as filed within business hours. Secondly, while the argument that a litigant lodging a document within time should not be penalised by the court’s delay in filing may be accepted, there was no such delay here (or in any such case), in accordance with the FCR, as the Original Application was taken as being filed at the same time it was lodged, namely, 4.39 pm, in accordance with r 2.25(3). It is the rules that then prescribe it is deemed to be filed the next day. Arguably, the better construction of ‘the last moment’ for lodging on the day in question is the last possible business hour ‘moment’ under the Court’s rules, namely, 4.29 pm.
38.Clearly, an application to the Court under s 41(7) of the Bankruptcy Act must be a bona fide application in the sense of substantially conforming with the requirements of Form 2 of the Bankruptcy Rules. This proposition is consistent with r 2.12 FCR and s 25C of the Acts Interpretation Act. A document which fell well short of substantive compliance with Form 2 could not be described as an application within the meaning of s 41(7). No suggestion has been raised in the material in this instance that Dr Nugawela’s Original Application was not substantially compliant with Form 2. Nothing in the foregoing analysis prevents the rejection of the filing of the document for the reasons set out in the FCR. The analysis goes only to the question of the timing of the application to the Court.
39.As the time for compliance with the bankruptcy notice is fixed under the Bankruptcy Act, the Court cannot dispense with compliance with the FCR pursuant to either r 1.34 or r 1.39. In relation to r 1.34, Altobelli FM in Charlton v CNH Capital Australia Pty Ltd [2013] FMCA 232 (at [5]), correctly held in relation to a similarly worded provision that:
The power to extend time for compliance with a bankruptcy notice under s 33(1)(c) of the [Bankruptcy 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
This is, in our opinion, sufficient to dispose of the respondent’s argument that the electronic receipt was sufficient to invoke the jurisdiction. The jurisdiction could only be invoked in accordance with the rules of the Court; that is, when instituted according to the Rules. It was not suggested that the Rules were inconsistent with any statutory provisions. It follows that the Rules could not then be employed to give the Court jurisdiction which was otherwise lacking.
This ground of appeal succeeds.
The appeal must be allowed and the proceedings dismissed.
Costs
The appellants sought costs in the event that the appeal succeeded. Whilst they have been wholly successful, the parties’ financial circumstances are not equal. The respondent owns an unencumbered property valued at $450,000 and has some debts. The estate of the deceased has a net value in excess of $5 million.
It is appropriate that there be no order as to costs. The parties will be granted certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Aldridge & Kent JJ) delivered on 17 September 2018.
Legal associate:
Date: 17 September 2018
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