Was a copy of the judgment attached at the time of issue?
43 There are several matters to consider in the present case. What was the time of issue and what constituted the act of issue? Further, at that time, was a copy of the judgment attached?
44 The concept of "issue" requires an external act in the nature of a sending out or delivery. It is required to be more than just the internal decision making process or internal acts of the issuer (see Prudential-Bache Securities at [18]-[19] per Emmett J; Nash v Thomas (2012) 204 FCR 415 at [26] per Finn J and Circle Credit Co-Op Ltd v Lilikakis (2000) 99 FCR 592 at 593 per Heerey J).
45 In our opinion, the sending of the 25 February 2014 email with the various attachments was the act that culminated in the issue of the bankruptcy notice. Physical sending or delivery could have constituted the act of issue. But in the present case such acts were constituted electronically.
46 No party contended that electronic sending or delivery could not constitute an act of issue. Rather, the contention of Curtis was that there had not, using such an electronic mode, been the necessary attaching of a copy of the judgment to the bankruptcy notice. As to the electronic communication via email, we do not need to consider whether the issue was the sending of the email or its receipt. As the communication would have been almost instantaneous, there is little difference for present purposes.
47 The real issue between the parties turned upon the question as to whether a copy of the judgment was attached to the bankruptcy notice by such a copy being one of the attachments to the email, along with the notice and the accompanying letter. Clearly, all 3 documents were attached to the email. The question was whether 2 of the 3 pdfs could be considered as being attached to each other for the purposes of compliance with reg 4.02.
48 First, it seems to us that reg 16.01 arguably permitted the issuing of the bankruptcy notice by electronic transmission. To the extent that the primary judge held that the Act and the Regulations did not envisage such a mode, we do not agree (see at [6], [31]-[40]); in fairness to his Honour, it remains unclear to us whether this regulation was drawn to his Honour's attention. Now reg 16.01 refers to a document being given or sent, but does not expressly refer to issuing. However, as we have said, issuing requires an external act such as a giving or sending. Accordingly, in our view reg 16.01 arguably applies. But of course, reg 16.01 does not itself answer the question of attachment, that is, whether if an electronic mode is used, what the concept of attachment or attaching is to be taken as embracing in that context.
49 Second, even absent reg 16.01, the Electronic Transactions Act permitted the issuing of the bankruptcy notice by electronic means (see ss 3(b), 5, 8, 9 and 11). His Honour referred to these provisions in his reasons (see [41]-[54]), although apparently the parties did not draw them to his Honour's attention and he heard no argument thereon. Curtis, in grounds of appeal 1 and 2, complains of a lack of procedural fairness. We do not accept this given the appellant's right of appeal and that this is essentially a legal question. But even if the complaint has validity, we are in the position of being able to deal with the provisions of the Electronic Transactions Act for ourselves (s 28 of the Federal Court of Australia Act 1976 (Cth)); we have heard full argument from the parties. But like reg 16.01, the provisions of the Electronic Transactions Act do not greatly assist. They provide generally that using an electronic mode is permissible and that invalidity does not flow from using such a mode. But such provisions do not directly assist in answering the question as to whether the required attachment has occurred. The specific requirement for attachment in reg 4.02 and Form 1 is not addressed in the general provisions of the Electronic Transactions Act.
50 His Honour (at [24]) dealt with the question of "attached" by referring to various dictionary definitions. The Oxford English Dictionary gives various meanings to the transitive verb, being:
"To tack on; to fasten or join" (item 5a)
"To connect or join on functionally" (item 6a)
Further, "attached" does not necessarily mean physically fastened (Stroud's Judicial Dictionary of Words and Phrases (8th ed, Sweet and Maxwell, 2012) at p 239). His Honour in this context also referred to Practice Note CM 6, although we do not find this of much assistance in the present context.
51 The question is whether the pdf of the copy judgment could be treated as "attached" to the pdf of the bankruptcy notice, both being attached (together with the letter) to the email. Now clearly they were both attached to the email. The question is whether they were attached to each other. In our view, they were so attached. They were attached to the same email and electronically proximate to each other. Both were sent together rather than separately. Moreover, the one electronic communication (the email and attachments) was not divisible electronically at the time of issue or immediate receipt. Later, of course, one could choose to separately open each pdf and print hard copies separately. But at the time of electronic issue, the bankruptcy notice and the copy judgment or order were together and not separated. In one sense they were electronically "glued" together. They were electronically "fastened" to each other. Short of the two documents being constituted in the one pdf, they were as close electronically as they could be. Further, if they had been constituted in the one pdf, then it might have been argued that they were one and the same document, rather than being a notice with an attachment. Moreover, the fact that each pdf was itself attached to the email does not entail that each pdf could not also be attached to each other.
52 It was put that as the accompanying letter was also attached to the email in a separate pdf, that the above reasoning might suggest that the letter was attached to the bankruptcy notice. In one sense it may have been, but that did not invalidate the bankruptcy notice; that was not a defect, alternatively s 306(1) would apply to cure such a formal defect or irregularity. In any event, such an argument does not appear to have been run below.
53 In summary, in our view, at the time of issue the copy judgment was attached to the bankruptcy notice. That conclusion is sufficient to dispose of this appeal.