Summers, D.R.D v Queensland Division of Actors Equity of Australia

[1991] FCA 748

C A T C H W O R D S

IIPM~~TRIAL LAW - application for inquiry into union election under S. 218 Industrial Relations Act 1988 - time limit stipulated by S . 62(1) mdustrial Relations Reaulationa 1988 -

whether court has discretion to entertain application.

RAVE S - v. W S L A N D DIVISION OF ACTORS' EOUITY

QrAsmma	NO. Q1 18 of 1991
SPENDER J. BRISBANE
9 July 1991

FEDERAL COURT OF

RECElVED

2      DEC 1991

c

-RICT REGISTRY Nb. Q1 18 of 1991

v 1

BETWEEN: DON RIC DAVE SUMMERS

Applicant

AND: WEENSLAND DIVISION OF ACTORS EOUITY OF

zu&muuA

Respondent

2	-	Spender J.
W:	9 July 1991
WHERE:	Brisbane
8	-

(1) The application be dismissed.

(2) No order as to costs.

mn:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1     No. p1 18 of 1991

1  

BETWEEN: DON RIC DAVE SUMMERS

Applicant

AND: ~ S L A N D IVISION OF ACTORS EOUITY oe

AUSTRnGIq

Respondent

ER J.

BRISBANE

2dxULuu

EX TEMPORE REASONS FOR JUDGMENT

In a statutory declaration dated 27 May 1991,

Hr. Don Ric Dave Summers seeks an inquiry by the Federal Court

of Australia under 8. 218 of the Induetrial 1988

into claimed irregularities in the election for offices in the

Queensland Division of Actors Equity of Australia.

In a supporting affidavit, Mr. Summers indicated was for the offices of divisional president, divisional	that the election in respect of which the inquiry was sought
secretary and divisional committee of 13, comprising actors (S), variety artists (S) and members other than actors or variety artists (3). In his affidavit, Mr. Summers indicated that the results of the election for those offices were declared on 19 November 1990. The statutory declaration and the affidavit were filed on 28 May 1991, the day after the declaration and affidavit were sworn.

Regulation 62(1) of the ~nduekrial Relation@

1988 is in these terms:

" An application under section 218 of the Act for

an inquiry into an election may be made;
(a) at any time before; or
(b) not later than 6 months after;
the day on which the result of the election is
declared. "

It appears that the application was made 6 months and 9 days after the date of the declaration of the result of the elections for which an inquiry is sought.

Mt. Summers submitted that the word "may" in Regulation 62(1) permits the Court to exercise a discretion to entertain an application for an inquiry into an election notwithstanding that that application was made more than six months after the date on which the result of the election was declared. He submitted that there were reasons why the discretion which he submitted was conferred on the Court ought to be exercised in his favour and, in particular, he drew

attention to the shortness of the time by which the

application exceeded the six months period specified in

Regulation 62(1) and submitted that part of the delay was occasioned by the unavailability of the Regulations. It cannot be said that any prejudice has been demonstrated if it were competent for the Court to entertain the application.

However, on the view I take of Regulation 62(1), the
requirement that the application be made not later than six

J

months after the day on which the result of the election is declared is mandatory. I am not able to see any room for construing Regulation 62(1) so as to permit an application to be entertained when the application is made after the six months period. To read "may" as permitting such a discretion would have the effect of rendering Regulation 62(1) nugatory.

Notwithstanding the matters which Mr. Summers has urged on me for the exercise of discretion in his favour, in the view I take of the matter the application is not competent because it was initiated more than six months after the day on which the result of the election was declared.

The application is dismissed. I make no order as to

coete .

I certify that this and the two preceding pages are a true copy of the reasons for judgment herein of Justice J. E. J.

Spender. @*( Associate

The applicant appeared in person.
Solicitors for the respondent :	Mr. T. A. Allingham of Goss Downey Carne
Date of Hearing	9 July 1991