De Lange v De Lange

Regulation 17(2)(b)(i) 6 In correspondence with my Chambers, the Applicant submitted that the New Zealand judgment was filed 'with the application' in accordance with reg 17(2)(b)(i) of the TTP Regulation because: (a) 'with the application' requires the contemporaneous filing of an application and judgment; and (b) the Applicant in fact filed the judgment contemporaneously with the application on her first attempt, by appending it to the electronically lodged application. 7 Whether or not those propositions are correct, reg 17(2)(b)(i) requires not only that a New Zealand judgment be filed 'with the application'. It also requires, by the chapeau to reg 17(2)(b), that a hard copy of the judgment be filed 'physically'. The Applicant appeared to argue that this criterion was inoperative because the Federal Court Rules 2011 (Cth) ('Federal Court Rules') generally permit the filing of documents in the Federal Court by electronic communication: r 2.21(1)(d). But it is a principle of statutory interpretation, expressible by the maxim generalia specialibus non derogant, that general provisions do not override specific provisions: see Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 275-278 per Gummow J (Brennan CJ, Dawson J, Gaudron J and McHugh J agreeing in separate judgments). That principle applies not only within but also between pieces of legislation: Herzfeld P and Prince T, Interpretation (2nd edition, Thomson Reuters, 2020) at p 150 [6.180]. Thus, the general permission in r 2.21 does not supersede the specific requirement of physical filing in reg 17(2)(b)(i). 8 That being so, reg 17(2)(b)(i) requires both that a hard copy of a New Zealand judgment be physically filed and that the physical filing occur 'with the application'. The former criterion was not met on the first attempt, because no hard copy was physically filed. The latter was not met on the second attempt, because the physical filing occurred a number of days after the application was electronically filed and so not contemporaneously with it. Accordingly, reg 17(2)(b)(i) was not satisfied on either of the Applicant's attempts.

Regulation 17(2)(b)(ii) 9 The Applicant also submitted that the second attempt satisfied reg 17(2)(b)(ii). Two questions arise in this connexion: whether the application was filed 'by facsimile or email'; and whether the hard copy judgment was physically filed within 15 working days of the filing of the application. 10 As has been mentioned, the Applicant filed the application through the Court's electronic filing system. The Applicant submits that because the Federal Court Rules refer to 'facsimile or electronic communication' as permissible forms of lodgement (r 2.21) and 'electronic communication' is defined widely enough to include both online filing and emailing, there is no distinction between online filing and emailing. Therefore, she argues, online filing (being indistinguishable from emailing) fits the term 'email' within reg 17(2)(b)(ii). 11 That interpretation is incorrect. 'Online filing' and 'email' are a taxonomic rank below 'electronic communication'. That horses and zebras both belong to the genus Equus does not mean they are the same species; that online filing and email are both electronic communications does not mean they are indistinguishable. The word 'email' in reg 17(2)(b)(ii) means email and does not include online filing. 12 Even assuming for the Applicant's benefit that the application had been filed by email, there remains the question whether the 15-day filing period in reg 17(2)(b)(ii) had expired by the time the judgment was physically filed. That period began to run on the date the application was filed. The Applicant submits that the application was filed when it was accepted by the Registry on 29 January 2024. That might have been so had the application been filed in hard copy: see r 2.25(b)(i) of the Federal Court Rules. But in the case, as here, of a document lodged electronically, r 2.25(3) of the Federal Court Rules provides: (3) If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed: (a) if the whole document is received by 4.30 pm on a business day for the Registry - on that day; or (b) in any other case - on the next business day for the Registry. 13 The word 'received' in r 2.25(3)(a) is critical. It means that a document which is faxed or sent by electronic communication is deemed to have been filed on the day the document is received by the Registry (if received on a business day before 4.30 pm) or on the next business day (otherwise), irrespective of when the document is accepted by the Registry. The application in this case was received by the Registry on 18 January 2024, prior to 4.30 pm. That is therefore the date on which the application was filed, notwithstanding that the application was not accepted for filing until 29 January 2024. 14 More than 15 working days elapsed between 18 January 2024 and the physical filing of the hard copy judgment on 13 February 2024. Accordingly, the Applicant's second attempt was out of time and did not satisfy reg 17(2)(b)(ii). 15 The Applicant conceded that the Court has no power to extend the 15-day filing period. She referred to Forlongs Furnishings Ltd v Thom [2022] FedCFamC2G 94; 366 FLR 219, where it was, with respect, correctly noted (at [15]) that no provision in the TTP Act or TTP Regulation allows such an extension, by contrast to the express provisions permitting extensions of time for filing an application (s 67(5)(c)(iii)) or for giving notice of registration of a judgment (s 73(3)(b)). 16 It follows that the Applicant did not make a valid application under s 67(1) of the TTP Act. In those circumstances, I conclude that the application must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.