Swan Television and Radio Broadcasters Ltd Trading As Stw Channel 9 Perth v Satie [1999] WASCA 79 (23 June 1999) Last Updated: 12 November 1999 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : SWAN TELEVISION AND RADIO BROADCASTERS LTD TRADING AS STW CHANNEL 9 PERTH -v- SATIE [1999] WASCA 79 CORAM : ANDERSON J (Deputy Presiding Judge) SCOTT J PARKER J HEARD : 1 JUNE 1999 DELIVERED : 23 JUNE 1999 FILE NO/S : IAC 2 of 1999 BETWEEN : SWAN TELEVISION AND RADIO BROADCASTERS LTD TRADING AS STW CHANNEL 9 PERTH Appellant AND GISELLE SATIE Respondent Catchwords: Industrial law - Western Australia - Miscellaneous matters - Procedure - Referral by employee of wrongful dismissal to Industrial Relations Commission - Consent of Registrar required for lodgement of application by facsimile - When filing fee is payable - Meaning of "referral", "lodging" and"filing" Legislation: Industrial Relations Act 1979 s 29(2) Industrial Relations Commission Regulations 1985 reg 3, reg 4, reg 6, reg 111 Result: Appeal dismissed Representation: Counsel: Appellant : Mr A D Lucev & Ms M A Binet Respondent : In Person Solicitors: Appellant : Freehill Hollingdale & Page Respondent : In Person Case(s) referred to in judgment(s): Case(s) also cited: Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339 ; 83 ALR 449 Brayson Motors Pty Ltd (In Liq) v FCT [1985] HCA 20 ; (1985) 156 CLR 651 Cahayag v Removal Review Authority [1998] 2 NZLR 72 Construction Forestry and Mining Employees Union & Ors v Federated Furnishing Trades Society of Australia (1992) 45 IR 363 DFCT (SA) v Ellis Clark Ltd [1934] HCA 54 ; (1934) 52 CLR 85 Ex parte Hot Holdings Pty Ltd (1996) 16 WAR 428 Francis v City of Ringwood (1978) 54 LGRA 323 Furlan v Wakool Shire Council (1990) 69 LGRA 394 Gosford Meats Pty Ltd v Queensland Insurance Co Ltd [1970] 3 NSWR 400 Hales v Bolton Leathers Ltd [1951] AC 531 Harding v Coburn [1976] 2 NZLR 577 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; (1985) 157 CLR 309 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 153 ALR 490 Registrar v SDA (1996) 76 WAIG 1705 Thorn EMI Pty Ltd v FCT (1987) 11 ALR 728 William Hull and City of Mandurah (1998) 78 WAIG 4912 1 ANDERSON J (Deputy Presiding Judge) : I agree that this appeal should be dismissed for the reasons given by Scott J, to which I have nothing to add. 2 SCOTT J : The respondent to this appeal was employed by the appellant. The respondent, having been dismissed by the appellant, brought a claim against the appellant for wrongful dismissal pursuant to the provisions of s 29 of the Industrial Relations Act 1979 ("the Industrial Relations Act "). 3 For the purposes of the initial application, the appeal to the Full Bench and for the purposes of this appeal, it was conceded by counsel for the appellant that the respondent's dismissal occurred on 27 March 1998. Counsel for the appellant has made it clear that should the matter go back for hearing, the date of the respondent's dismissal will be contested. I will return to that issue later in these reasons. 4 The application came before Commissioner P E Scott, who considered a preliminary issue arising under s 29(2) of the Industrial Relations Act . That section provides: "A referral by an employee under subsection (1)(b)(I) cannot be made more than 28 days after the day on which the employee's employment terminated." 5 If the respondent's employment was terminated on 27 March 1998, the final day for the referral of the respondent's industrial matter was 24 April 1998. If the referral was made on that day, it is common ground that it was within time, but if it was made after that day, the appellant argues that it was out of time and therefore statute barred. There is no provision in the Industrial Relations Act for the extension of time. 6 Applications made under the Industrial Relations Act are governed by the Industrial Relations Commission Regulations 1985 ("the Regulations "). Those Regulations provide in reg 3: "3(1) All documents required to be filed or lodged under the Act or these regulations shall be filed or lodged as the case may be in office of the Registrar. (2) Documents required to be filed or lodged under the Act or these regulations shall, unless in any particular case the Registrar or Deputy Registrar otherwise expressly approves, be filed not earlier than 9.00 am and not later than 4.00 pm on any day on which the office of the Registrar is open for business. (3) Where a document is required to be filed or lodged within a prescribed time and the office of the Registrar is not open for business on the last day on which it may be filed or lodged, it shall be deemed to have been filed or lodged within time if it is filed or lodged on the first day thereafter upon which the office of the Registrar is open for business. (4) Every document required to be filed or lodged under the Act or these regulations and copies thereof for service shall be in the form required by these regulations clearly written or typed or reproduced on one side only with an adequate margin. (5) The clerk receiving documents shall not accept any document unless it has been completed in accordance with the Act and these regulations. Provided that appeal books lodged in relation to appeals under section 49 and section 84 of the Act shall not be deemed documents for the purposes of this sub-regulation. (6) Except where otherwise provided by these regulations or otherwise directed by the Commission one copy of every document for the use of the Commission together with at least as many documents as there are parties shall be filed or lodged in the office of the Registrar. (7) Subject to the provisions of regulation 111 and with the prior consent of the Registrar, documents to be lodged in the office of the Registrar may be lodged by means of electronic data transmission." 7 The facts as they emerged before the Commissioner who heard the original application were that the respondent's then solicitors forwarded to the Industrial Relations Commission by facsimile transmission, an application in the form of Form 1 together with a facsimile header sheet on Friday, 24 April 1998. The facsimile header sheet on the letter of J A Long & Co, Barristers & Solicitors, is directed to the Registrar of the Western Australian Industrial Relations Commission and the facsimile reference is "Re Unfair Dismissal: Satie." In the notes' section of the header sheet the solicitors have written: "Dear Registrar Because we anticipate that there may be a dispute between the parties as to the last day being 27 or 29 March, we request that you please accept this application as filed today. The original will be filed on Tuesday next week. Thanking you in anticipation. Yours sincerely J A Long & Co." 8 On the same header sheet there is a notation which it is agreed was made by a clerk of the Commission, " Ranjit please process as at 24/04/98 and hold for original and filing fee. AW CTC." 9 It is common ground that Ranjit was a clerk in the Commission and that the initials AW refer to A Wilson, a clerk to the Commission. 10 On the notice of application Form 1, there is a further notation by A Wilson, "Approval to file by fax given". 11 The weekend following 24 April 1998 was a long weekend and on 28 April 1998, the first working day after the long weekend, the solicitors for the respondent forwarded to the Industrial Relations Commission a further notice of application Form 1 in almost identical terms to that which was faxed on 24 April 1998. This application bears the Commission's number 727 of 1998, whereas the faxed copy of 24 April 1998 does not bear any Commission number. In addition, the application of 28 April 1998 bears the Commission's official stamp. It is common ground that a fee was paid on 28 April 1998. 12 So far as I am able to detect, the body of the application, apart from the notice being the front page of the application, is in identical terms to that which was faxed on 24 April 1998, except that the declaration on the last page of the document of 28 April 1998 bears that date, whereas the faxed copy is dated 24 April 1998. 13 From those documents, in my opinion, it is clear that a clerk to the Commission has noted the Form 1 of 24 April 1998 to the effect that approval to file by fax had been given. As can be seen from the regulations referred to earlier in these reasons, under reg 3(7), applications can be lodged by electronic data transmission with the prior consent of the Registrar. It is to be noted that reg 3(7) is said to be "subject to the provisions of regulation 111" and I will come to that issue later in these reasons. 14 At the original hearing before the single Commissioner, the point was taken by the then respondent (now appellant) that the faxed transmission of 24 April 1998 did not constitute the referral of the industrial matter in accordance with s 29(2) of the Industrial Relations Act and that the referral of 28 April 1998 was therefore out of time and statute barred so that the application could proceed no further. 15 Commissioner Scott, who heard the application at the first instance, concluded that because no fee had been paid on the application of 24 April 1998 as required by the Industrial Relations Act , the application did not meet the requirements of the Industrial Relations Act and Regulations so that there was no lodgement of the document. As a consequence, the later application was made out of time and was a nullity and the Commissioner dismissed that application for want of jurisdiction: cf Satie v STW Channel 9 Perth (1999) 79 WAIG 292 16 The respondent to this appeal appealed to the Full Bench of the Industrial Commission. The Full Bench allowed the appeal and overturned the decision of the single Commissioner. 17 In his judgment, the learned President referred to the Regulations , which he set out in detail in his reasons following his analysis of the history of the matter. The learned President examined in detail the proper interpretation of the words "lodge and lodging" where they appear in the Regulations and the word "filing" as it appears in the Regulations . I will return later to the reasons of the learned President. 18 In his judgment the learned President came to the conclusion: "The referral required to be made by s 29(2) of the Act is, by a combination of s 113 and Regulations 3 , 8 and 4 (1), required to be lodged in the form of a form of application. It was. The referral was then complete. The filing and issuing was then a matter for the Registrar. The applicant could do no more. The document lodged on 28 April 1998 was not the 'original' of the application lodged on 24 April 1998, because the application was already lodged and, indeed, deemed to be filed. In fact, it was not filed until the steps to be taken under Regulation 4 , 6 and 8 , were taken, but that did not affect the lodging in time and the making of a referral in time." 19 In his conclusion, therefore, the learned President, with whom the other Commissioners agreed, held that the referral had been made within time. His Honour went on to conclude that filing, which was a different process, could not be completed and there could be no issuing of the application until the relevant fee was paid. However, he concluded that the referral was made within 28 days as required and that the Commissioner erred in law in holding otherwise. As a consequence, the Full Bench upheld the appeal and remitted the matter to the Commission. 20 The grounds for appeal are as follows: "1 The Commission erred in law: (a) in failing to find that the preconditions prescribed for lodgement of an application pursuant to regulation 3(7) had not been met; and (b) in finding that consent for filing by facsimile could be given other than by the Registrar, and in relation to paragraphs (a) and (b) failed to take into account the following considerations; (c) regulation 3(7) which provides that lodgement by facsimile is subject to the prior consent of the Registrar; and (d) there was no evidence that the Registrar gave approval. 2 The Commission erred in law in finding that 'lodgement' of an application requires no more than physically depositing in, presenting to, handing to or forwarding to (whether by mail or by electronic transmission) the Registry in the form prescribed by regulation 3(4) and in this respect failed to take into account that regulation 3(7) expressly prescribes preconditions for lodgement by facsimile. 3 The Commission erred in law in finding that payment of the prescribed fee pursuant to Regulation 111 of the Industrial Relations Commission Regulations 1985 ('the Regulations ') was not a condition precedent to lodgement of an application by facsimile and in this respect failed to take into account the following considerations: (a) that regulation 3(7) which provides for lodgement by facsimile is subject to compliance with Regulation 111 which prescribes payment of the relevant fee on filing; (b) Regulation 8(1) of the Regulations requires that proceedings be commenced by Notice of Application in accordance with Form 1. Form 1 states that 'The appropriate fee is to be paid upon lodgement of this application.' and (c) the Respondent did not pay the prescribed fee pursuant to Regulation 111 within the 28-day limit. 4 The Commission erred in law in finding that a document need only be lodged and not filed for the purposes of a 'referral' under section 29(2) of the Act and in this respect failed to take into account the following considerations: (a) Pursuant to subregulation 8(1) a Notice of Application must be filed and not merely lodged. (b) The Respondent's application was not filed within the 28 day time limit. 5 The Commission erred in law in finding that there had been a 'referral' of the Respondent's claim to the Commission at the time the Application was forwarded to or presented to the Registry by facsimile transmission on 24 April 1998, pursuant to section 29(2) of the Act, and in this respect failed to take into account the following considerations: (a) The Respondent's application was not lodged or filed with the Commission within the 28 day time limit. (b) The scheme of the legislation is such that a matter cannot be referred to the Commission under section 29(2) of the Industrial Relations Act 1979 until the application has been filed and/or lodged. The Appellant seeks the following orders: 1 The Appeal be upheld; and 2 The whole of the decision and order of the Full Bench of The Western Australian Industrial Commission in 2238 of 1998 be quashed." 21 In developing his submissions in relation to the grounds of appeal, counsel for the appellant said that although there were five grounds of appeal, they resolve themselves into two essential issues. The first, counsel said, was whether the preconditions under reg 3(7) have been met, that is, whether there was prior consent of the Registrar and whether there was compliance with the provisions of reg 111(1). Secondly, that a s 29 referral can only be made once an application has been lodged or filed, and in this case that it has not been lodged, and that it has not been filed, so that therefore it cannot be referred to the Commission. 22 In order to deal with the grounds of appeal and the arguments advanced on behalf of the appellant, it is necessary to refer to some of the other regulations, which are raised in the grounds of appeal. 23 Regulation 4 of the Regulations provides: "(1) The Registrar shall issue all processes out of the Commission and each document presented to the Registrar at his office for filing or issue under the Act or these regulations shall be stamped with the stamp of the Commission endorsed with the date and time of filing. (2) The Registrar shall mark each originating process with a distinguishing number and all documents subsequently taken in the Commission and any award, order, declaration or direction made by the Commission in relation to the matter shall be distinguished by the same number. (3) The Registrar shall keep a register of all proceedings in and awards, orders and declarations made by the Commission and the entries in the records kept with regard to each matter shall be entered together and kept separate from the entries with respect to any other matter. (4) Subject to these regulations upon documents being accepted for filing and the party lodging the documents completing the copies as endorsed by the Registrar the Registrar shall cause the copies to be stamped and returned to the party." 24 Regulation 6 of the Regulations provides: "(1) There shall be a stamp which shall bear the words 'The Stamp of the Western Australian Industrial Relations Commission' and which shall provide for a date and a facsimile of the signature of the Registrar. (2) The stamp shall be in the custody of the Registrar. (3) In addition to any other requirement of these regulations the stamp shall be affixed by the Registrar or at his direction to all documents issued in his name in relation to proceedings before the Commission." 25 Regulation 111 provides: "(1) The following fees shall be paid to the Registrar on the filing of documents under the Act or these regulations and all other regulations made under the Act and for the supply of documents, authentications and other specified service, namely..." 26 The essence of the argument by counsel for the appellant involves the analysis of the three aspects of the initiation of proceedings in the Industrial Commission for the purpose of complying with the Industrial Relations Act and Regulations . The first is the meaning to be assigned to the word "referred" contained in s 29 of the Industrial Relations Act . The second is the meaning of the word "filed" in the Regulations , and particularly in relation to reg 3. And finally, the meaning of the word "lodged", also contained within reg 3. In addition, an issue arises as to the significance of the payment of the filing fee as required under reg 111(1). 27 The first matter for consideration is the meaning to be assigned to the word "refer" in s 29(2) of the Industrial Relations Act . The Macquarie Dictionary assigns the relevant meaning of that term as "to hand over or submit for information, consideration, decision etc. to refer a cause to arbitration ". The Concise Oxford Dictionary relevantly defines "refer" to mean, "send or direct (a person, or a question for decision) (the matter was referred to arbitration; referred him to her previous answer) ." 28 From those definitions it is apparent that s 29(2) of the Industrial Relations Act empowers a party to send on or direct a dispute to the Industrial Relations Commission. In my opinion that section is an empowering section directed to a party which enables the party to submit a relevant dispute to the Industrial Relations Commission for resolution. The mechanism by which that reference is to be made, however, is then governed by the Regulations which prescribe and control the method by which the party who makes the reference is to proceed. 29 It is common ground that the only way in which a matter can be initiated in the Industrial Relations Commission is by Form 1, which is the form originally faxed to the Commission by the respondent's solicitors. 30 The next matter for consideration is the meaning to be assigned to the word "lodged" under reg 3 of the Regulations . Again, in relation that word, it is to be noted that it is entirely within the hands of a party to "lodge" a document. The Macquarie Dictionary defines "lodge" relevantly as meaning "to lay (information, a complaint, etc.) before a court or the like. Assigning that meaning to the word "lodge" in reg 7, it was entirely within the power of the respondent or her solicitors to take the step of "lodging" the Form 1 in this case. In my view, that was part of the process of "referral" and a necessary step for the respondent to take for the dispute to be referred to the Commission. 31 As can be seen from reg 3(7) of the Regulations , lodgement of such an application could be effected by means of electronic data transmission with the prior consent of the Registrar, and indeed, the respondent argues, that this is precisely what occurred in this instance. It is to be noted that electronic data transmission lodgement is subject to the provisions of reg 111, to which I will return later. In my opinion, however, the act of lodging the document was completed once the facsimile of the Form 1 which had been transmitted by the respondent's solicitors was received in the Registry of the Commission. In Fetz & Ors v Qantas Airways Ltd (1997) 77 IR 443 , Ross VP said at 449: "The ordinary meaning of the word 'lodged' and the absence of an express statement in the Act or Regulations that the payment of a prescribed fee is a condition precedent to the lodgement support the view that an application is lodged when it is received by the Registry. In this case such a construction would mean that the relevant applications were lodged within the prescribed time." 32 The transmission of applications by electronic data means is an unusual form of lodgement of documents within the normal court processes. However, a similar provision was considered by the Federal Court of Australia in Hong Ye v Minister for Immigration and Multicultural Affairs [1998] FCA 341 ; (1998) 153 ALR 327 where the Federal Court, comprising their Honours Burchett, Lehane and Finklestein JJ had occasion to consider a similar problem arising under the Migration Act 1958 (Cth), s 478. In the Judgment of the Court, their Honours held at 330: "A party who is required to 'lodge' a document does not have the power or ability to 'file' that document among the records of the court or its registry. What will suffice to satisfy that requirement that a document be 'lodged' with the registry? The word lodge appears to us to have no special or technical meaning. It is to be given its ordinary meaning. A reference to the Oxford English Dictionary shows that the word has a number of meanings but two appear apposite. They are: c. Deposit in a specified place of custody or security. e. Deposit in court or with an official a formal statement of (a complaint, objection, etc); bring forward, allege, (an objection etc). In accordance with these meanings an application to review will be 'lodged' when it comes into the possession of a registry or the staff of a registry." 33 In my opinion, the same meaning should be assigned to the word "lodged" in reg 3 so that the relevant document is lodged at the stage at which it comes into possession of the registry or staff of the registry. In the case of a facsimile transmission, which occurred in this case and was also under consideration in Hong Ye 's case, I have reached the conclusion that the document was lodged when it was physically deposited with the court or when it came into possession of the court or tribunal by facsimile transmission (see Hong Ye v Minister for Immigration and Multicultural Affairs at 332). 34 In this case, therefore, in my opinion, the respondent's application was lodged when the facsimile transmission was received by the Registry of the court. 35 In finally dealing with that aspect of the matter, it is to be noted that reg 3 requires the prior consent of the Registrar. In this respect, it is clear from the provisions of reg 3 that with the exception of reg 3(2) the word "Registrar" includes the staff of the registry, including clerks employed in the registry. The exception arises in reg 3(2) which expressly refers to the "Registrar or Deputy Registry". It is not necessary to determine the meaning to be assigned to those words in reg 3(2) and is sufficient to say for present purposes that the reference otherwise to "Registrar" in the balance of reg 3 is wide enough to encompass not only the Registrar in person but the registry staff. Many of the obligations contained within that regulation could not possibly be performed otherwise than by registry staff and it is clear that for the functioning of the registry, the personal consent of the Registrar is not required. The regulations would otherwise become unworkable. 36 Whilst it is argued for the appellant that the consent of the Registrar was not obtained, in my opinion, the endorsement on the front of the Form 1, to which I have earlier referred, is sufficient evidence that the consent of the Registrar, within the meaning of reg 3(1), was obtained for the documents to be lodged by facsimile transmission. That endorsement set out earlier in these reasons, although not signed by the Registrar, in my opinion, is sufficient evidence that his consent, whether given personally or by one of his officers, was obtained for the document to be lodged by facsimile transmission. 37 The next consideration is the meaning to be assigned to the word "filed" in reg 3. The word "file" is an ancient English term, the original derivative of which related to the practice of placing a string or wire through papers for the purpose of preserving them. In Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 , Bowen CJ, Fisher and Lockhart JJ said in reference to the Bankruptcy Act 1966 (Cth) at 515: "'Filed' is not a word to be found in the Act in relation to a petition, whether a creditor's or debtor's petition. The Act uses the word 'presented'. 'Filed' is a word which appears in the Bankruptcy Rules and understandably so. Those rules are concerned with what happens within the bankruptcy registries and with the duties of parties lodging documents there. 'Filing' is the word traditionally used to describe the act or process of placing documents in the records of courts or registries." 38 In my opinion, the same considerations apply here so that the act of filing is an act performed by the Registrar or his clerks and is an act that is not within the control of the party lodging the document. The act of filing is therefore the act of the clerk or person within the employ of the registry, who has the responsibility of ensuring that the documents are placed upon the appropriate file within the registry. 39 I turn to the next question of the significance, namely, the payment of the filing fee prescribed by reg 111, set out earlier in these reasons. The first thing to be noticed about that regulation is that the fees are payable to the Registrar on the "filing of documents". The fee is not payable on lodgement and no doubt there are cases in which the clerk receiving a document may reject it so that no filing fee is payable. The power to do so is to be found in reg 3(5). It is only when the lodged document is accepted for filing that the filing fee becomes payable and in my opinion the payment of the fee need not necessarily be contemporaneous with the lodging of the document. In many courts it is common for documents lodged to be checked before they are accepted for filing and it is only when they are accepted by the court that the filing fee becomes payable. As a consequence, in my opinion, the payment of the fee in this case was not a necessary step for the referral to be complete once the document lodged was in a form acceptable to the registry. 40 It follows, in my opinion, that the Full Bench was not in error in relation to the decision the subject of this appeal. The application forwarded by facsimile transmission was sufficient to constitute referral within the meaning of that term in s 29(2) of the Industrial Relations Act . 41 I would finally add this. The Industrial Relations Act in its long title is said to be: "An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes." 42 The respondent in this case claims that she was wrongfully dismissed. Her then solicitors sought to ventilate the dispute, which had arisen between the respondent and the appellant by referring the matter to the Commission. As revealed in these reasons, the appellant took the point at the commencement of the hearing before the single Commissioner that the referral had not been made within time. On that occasion it was made clear to the Commissioner that it was only for the purposes of determining the preliminary point that the employer accepted that the termination occurred on 27 March 1998. In Satie v STW Channel 9 Perth , the Commissioner sets out submissions made on behalf of the appellant: "2.5 On Friday, 27 March 1998, when Ms Satie telephoned a work colleague to confirm a shift, she was told that she had been replaced. Ms Satie immediately telephoned Ms Marks to protest that she had not resigned and had no intention of resigning. Ms Satie was told by Ms Marks that it was 'too late'. 2.7 Even after the conversation with Ms Marks on 27 March 1998, Ms Satie did not accept her termination. She went to work on Sunday 29 March 1998 as arranged with a colleague to cover that colleague's shift (for this reason Ms Satie stated in her application that her last day of work was 29 March 1998). She did not work that Sunday because the respondent had apparently arranged for someone else to cover the shift." 43 The attitude of the employer has remained the same throughout these proceedings so that the respondent who has, by the application, sought to ventilate this dispute with her employer, has been taken through the entire industrial process to this Court in relation to a preliminary point, the underlying facts of which remain in dispute. In my opinion, that state of affairs is unsatisfactory and contrary to the legislative spirit of the Industrial Relations Act . 44 By reason of the conclusions to which I have come, the matter will now be referred back to the single Commissioner so that the facts of the matter can be determined and the respondent's claim adjudicated. In the meantime there has been delay and expense occasioned by the use of the appellate process to ventilate what is essentially a hypothetical dispute. To have the matter dealt with in that way is, in my opinion, to bring about a grave injustice to the respondent in that the ultimate determination of her claim has been extensively delayed. In my opinion it is not appropriate for such a matter to proceed on appeal until the underlying questions of fact have been determined. 45 In the event, in my opinion, the appeal should be dismissed. 46 PARKER J : I agree with the orders proposed by Scott J and with his reasons for decision.