Baker v Stephen Island Community Council [2001] QIRC 53 (2001) 166 QGIG 438

438 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 April, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Jimmy F. Baker AND Stephen Island Community Council (No. B1509 of 2000) COMMISSIONER BLADES 6 April 2001 Unfair dismissal application – Anti-Discrimination Act s. 153 – Application lodged in Anti-Discrimination Commission prior to filing in Industrial Commission – Whether applicant may proceed with application for industrial relief – Whether date of lodgment is date application accepted by Commissioner under s. 141 – Meaning of “lodge”; “file” – Held that “lodge” is the act of the party not of the Commissioner – Held application lodged in Anti-Discrimination Commission prior to filing in Industrial Commission – Held applicant unable to apply for industrial relief – Application dismissed. DECISION The applicant Mr Baker filed an application alleging unfair dismissal from his former position of Community Police Officer with the Stephen Island Community Council in the Industrial Court Registry on 11 October, 2000. The material facts alleged that Mr Baker had been dismissed because of “discrimination for having a political opinion” and secondly “for not supplying an incident report”. The respondent alleges that because a complaint to the Anti-Discrimination Commission was received by that Commission on 4 October, 2000, the provisions of s. 153 of the Anti-Discrimination Act 1991 (the AD Act) preclude the filing of the application in the Industrial Commission. The Queensland Anti-Discrimination Commission sought and was granted leave to be heard under the provisions of s. 329(b)(v) of the Industrial Relations Act 1999. Section 153 of the AD Act provides:– “If, but for this section – (a) a worker is dismissed in circumstances entitling the worker to – (i) lodge a complaint with the Commissioner under the Act; and (ii) apply for industrial relief; and (b) the worker does not apply for industrial relief before lodging a complaint; the worker may only proceed with the complaint and may not later apply for industrial relief in respect of the circumstances.”. Under s. 154 of the AD Act, if the worker applies for industrial relief before lodging a complaint, the worker may proceed with both the complaint and the application for industrial relief. What happened was that the applicant’s complaint was faxed to the Anti-Discrimination Commission and received by the Commission before it was filed in the Industrial Relations Commission. Section 136 of the AD Act “Making a complaint” provides:– “A complaint must – (a) be in writing; and (b) set out reasonably sufficient details to indicate an alleged contravention of the Act; and (c) be lodged with, or sent by post to, the Commissioner.”. -- 1 of 3 -- 20 April, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 439 The applicant submits that the “lodgement date” for the purposes of the AD Act is considered by the Anti-Discrimination Commission to be the date when the complaint is determined as being within the jurisdiction of the Anti-Discrimination Commission and this date is deemed the lodgment date. As the Commissioner has determined the lodgement date of the applicant’s complaint to be 24 October, 2000, effectively the complaint was lodged with the Commissioner after filing the application with the Queensland Industrial Relations Commission and accordingly, the applicant may proceed with both. This is said to arise because of the provisions of s. 141 of the AD Act which reads as follows:– “(1) The Commissioner must decide whether to accept or reject a complaint within 28 days of receiving the complaint. (2) The Commissioner must promptly notify the complainant of the decision.”. The Commission submits that it has treated the lodgement of a claim as not occurring until a specific decision has been made on the part of the Commissioner to accept the claim. In terms of the time limit in s. 138 of the AD Act, the Commissioner may, upon acceptance of the claim, then backdate the lodgement of the claim to the date of first receipt of the claim whether by post or at the Commission counter. The respondent submits that the word “lodged” as it appears in s. 136 describes the action of the applicant in causing the receipt of the complaint by the Commissioner and does not refer to or involve any action of the Commissioner so that the date of lodgment can only be the date upon which the applicant took the action of causing the Commission to receive the document without reference to subsequent actions of the Commissioner. The respondent says that the provisions of the AD Act are clear and there is no ambiguity. The question is what is the meaning of the words “lodged” and “lodge” as used in ss. 136, 153 and 154, these being the only sections of the AD Act which use that expression? The word “file” is used in sections 164 and 189. In s. 164, if there is an agreement after conciliation, the Commissioner must provide a copy of the agreement to each party and file the document with the Tribunal. Similarly, in s. 189, if there is a resolution before a determination by the Tribunal, it must be recorded in a document and the parties must file the document with the Tribunal. The words “lodged” and “file” must therefore bear a different meaning. See eg Scott v. Commercial Hotel Merbein Pty Ltd (1930) VLR 75; O’Sullivan v. Barton (1947) SASR 4; Bell v. Day (1886) 2 QLJ 180. By looking at the meaning of both terms, an indication can be gleaned as to the meaning of “lodged”. His Honour Hall P said in AEC Electrics Pty Ltd v. Raby 166 QGIG 2-4:– “‘Filing’ is a word now used ‘to describe the act or process of placing documents in the records of courts or registries’ .... and sometimes (more liberally) to describe ‘the act of handing over a document and having it received by the filing staff without reservation’ ...... But the mere tendering or showing of the document to a court officer has never been characterised as ‘filing’.”. The distinction in the terminology is reflected in the following decisions of various courts. The word “presented” is used in the Bankruptcy Act 1966 in the context of a creditor presenting a petition for a sequestration order against the estate of a debtor. The Full Court in Purden Pty Ltd v. Registrar in Bankruptcy 43 ALR 512 said:– “In our opinion the words ‘presented’ or ‘presentation’ are used in the Act .... in the sense of handing or delivering the petition to and acceptance by (the appropriate court officer). That showing of the document to the court’s officer and its receipt by him are both necessary elements in the notion of presentation of a petition. However, what the officer does with the document thereafter is nothing to the point as by then it has been presented.”. The Full Court also said that the act of presentation has been said to be the act of a party and the act of filing to be the act of the court. It was held that the word “filing” was the act or process of placing documents in the records of courts or registries. Purden was referred to in Angus Fire Armour Australia Pty Ltd v. Collector of Customs (NSW) 83 ALR 449. Sweeney J said:– “The word ‘lodge’ is not defined, and is to be given its ordinary meaning, ‘To place, deposit’, including the example ‘to deposit in court or with an official a formal statement of (an information, complaint, objection etc)’; see the Shorter Oxford Dictionary.”. His Honour applied the reasoning in Purden while acknowledging that the law relating to the presentation of a creditor’s petition is subject to some considerations which are peculiar to bankruptcy. He concluded that the application had been lodged even though the Tribunal returned the documents. Northrop J also applied Purden and referred to the ordinary meaning of the word “lodge”. It appeared to be the practice of the Tribunal to allow a lodgment by post. His Honour said (at p. 461):– “Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the registry. Thus, if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the registry. Similarly, a document deposited on a counter at the office of a registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.”. Both cases were referred to in Hong Ye v. Minister for Immigration and Multicultural Affairs 153 ALR 327 which dealt with the interpretation of the word “lodged” in s. 478(1) of the Migration Act requiring an application for a review of a decision to be lodged within 28 days. The Full Court of the Federal Court said:– “The first matter to notice is that s 478 is concerned with an act of a party and not with an act of the court or an officer of the court. This distinction is an important one. ... ‘Filing’ is the word used to describe the process of placing a document in the records of a court or its registry: ... because s 478 is concerned with an act of a party it cannot be supposed that the word ‘lodge’ is synonymous with the word ‘file’. 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.”. The Full Court then made reference to the ordinary meaning of the word “lodge” taken from the Oxford English Dictionary and went on to say:– “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. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the registry the application will be in the possession of the registry when the transmission is complete ...”. -- 2 of 3 -- 440 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 April, 2001 Finally in Swan Television and Radio Broadcasters Ltd tdg as STW Channel 9 Perth v. Satie (1999) WASCA 79 the Court of Appeal of the Supreme Court of Western Australia dealt with the meaning of the words “referred”, “filed” and “lodged” in the WA Industrial Relations Act. Hong Ye was applied and the Court held that the application was lodged when the facsimile transmission was received by the Registry of the court. In also applying Purden, the Court said this about the word “filing”:– “... 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.”. All of these cases involve an interpretation of different legislation; in Purden it was the Bankruptcy Act; in Angus Fire Armour it was the Administrative Appeals Tribunal Act; in Hong Ye it was the Migration Act and in Satie it was the WA Industrial Relations Act. The same theme as to the meaning of “lodged” runs throughout each decision and should be applied in this case. It appears to be the practice of the Anti-Discrimination Commission to allow applications to be sent by facsimile. The application was received by the Anti-Discrimination Commission on 4 October and then received by the Industrial Relations Commission 11 October. The practice of the Anti- Discrimination in accordance with s. 141 of the AD Act of deciding whether to accept or reject a complaint within 28 days of its receipt does not affect its lodgment. It was lodged when it was received because the act of lodgment is the act of the party, not the Commissioner. Mr Keim submitted that s. 136 drew a distinction between the lodgment and making of a complaint. He submitted that if the application was sent by post, the application was made but not lodged and the transmission of the facsimile was equivalent to sending by post. But in either case, there is envisaged a receipt of the application by the Commissioner. That the Commissioner may later reject the application does not affect its receipt and the Commissioner’s practice under s. 141 is the same whether the document is handed over the counter or arrives via the post. I agree with the respondent’s submissions that the provisions of s. 153 are without ambiguity. The word “lodged” in s. 153 should be given its ordinary meaning as explained and expanded upon by various Courts. Mr Baker could have filed his application for unfair dismissal based on discrimination in the Queensland Industrial Relations Commission if he was seeking reinstatement. Instead he elected to first go to the Anti-Discrimination Commission. The plain meaning of s. 153 is that if he does that he cannot afterwards come to the Industrial Commission. The application is dismissed. I order accordingly. B.J. BLADES, Commissioner. Released: 6 April 2001 Appearances:– Mr M. Dalton, of Gayler Cleland Towne, for the Applicant. Mr P. Richards, of Reidy and Tonkin, with him Mr R. Stephen and Ms J. Steele, for the Respondent. Mr S. Keim, Counsel, for the Anti-Discrimination Commission Queensland. -- 3 of 3 --