Morrison v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [1999] FCA 1066

FEDERAL COURT OF AUSTRALIA

Morrison v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1999] FCA 1066

STUART MORRISON v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION V 279 OF 1999 NORTH J 5 JULY 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 279 OF 1999

BETWEEN: STUART MORRISON

Applicant

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Respondent

JUDGE: NORTH J

DATE OF ORDER: 5 JULY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The motion, notice of which was filed on 29 June 1999 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Mr Noel Treharne, is dismissed. 2. Costs reserved. 3. The applicant file and serve any affidavits upon which he intends to rely and his contentions of fact and law by 6 September 1999. 4. By 5 November 1999 the parties opposing the applicant's case file and serve any affidavits upon which they intend to rely and any contentions of fact and law. 5. The directions hearing is adjourned until 10.15 am on 8 November 1999. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 279 OF 1999

BETWEEN: STUART MORRISON

Applicant

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Respondent

JUDGE: NORTH J

DATE: 5 JULY 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is a motion, notice of which was filed on 29 June 1999 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union) and Mr Noel Treharne, for an order that the Court dismiss the application for an inquiry into an election for the federal secretary and assistant national secretary of the confectionary division of the Union (the inquiry application). It is common ground that the election result was declared on 19 November 1998. Central to the resolution of the said motion are the terms of reg 62(1)(b) of the Workplace Relations Regulations. The regulation provides relevantly that: "An application under section 218 of the Act for an inquiry into an election may be made: … (b) not later than six months after; the day on which the result of the election is declared." 2 Also relevant are sections 218 and 219 of the Workplace Relations Act 1996 (Cth) (the Act) which provide as follows: "218 Where a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make application for an inquiry by the Court into the matter. 219 Where: (a) an application for an inquiry has been lodged with the Court under section 218; and (b) the Court is satisfied that there is reasonable ground for the application; the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted." 3 On 19 May 1999 the inquiry application was received by the Court. The inquiry application bears the receipt stamp of the Court dated 19 May 1999. It also bears a customary filing stamp which signifies that the document was filed with the Court on 26 May 1999. The explanation for those two stamps is that on 19 May 1999 the solicitors for the applicants deposited the inquiry application with the Court. In order to discharge the function required under s 219B that the Court be satisfied there is a reasonable ground for the application, I listed the inquiry application for an ex parte hearing on 26 May 1999 for the purpose of satisfying myself that such reasonable grounds existed. Having been persuaded on that day that such grounds did exist, the Court in accordance with its usual practice stamped the document "filed". 4 The first issue to be resolved under reg 62(1)(b) is the date upon which the application was made. Mr Haylen QC, who appeared on behalf of the Union and Mr Treharne, contended that the inquiry application was not made until 26 May 1999 for the purposes of reg 62(1)(b). Mr Hinkley, who appeared as counsel for the applicant in the inquiry, Mr Morrison, contended that the inquiry application had been made for the purposes of reg 62(1)(b) when the document was lodged with the Court on 19 May 1999. In my view the argument put by Mr Hinkley is correct. Sections 218 and 219 establish a procedure which distinguishes between the "making" of an application and the "institution" of an application. An application is made under s 218 when it is lodged with the Court. Under s 219, once that step has been taken the Court determines the question stipulated in s 219(b), and the inquiry is taken to have been instituted if those reasonable grounds have been made out. 5 The verbiage of s 218 is that a person may make an application. Section 219(a) speaks of the act of making under s 218, being affected by lodgment of the application, and reg 62(1)(b) picks up the verbiage of making an application as the relevant action. In my view the scheme of those two provisions is to render the date of initial lodgment of the application document as the date of making the application. Consequently the inquiry application for the purposes of reg 62(1)(b) was made on 19 May 1999. 6 The second question that arises in this case is whether 19 May 1999 was within the time stipulated in reg 62(1)(b), namely a time not later than six months after the day on which the result of the election is declared. Mr Hinkley relied upon s 36(1) of the Acts Interpretation Act 1901 (Cth) which provides: "Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event." 7 He contended that the date of the declaration of the election result, namely 19 November 1999, is to be excluded from the calculation of the six-month period. The consequence of that is that the inquiry application was made within the relevant six months. Mr Haylen, on the other hand, contended that the date of declaration was to be included in the said period, the six months thereby concluding at the end of 18 May 1999 and therefore rendering the inquiry application a maximum of one day out of time. 8 I agree with Mr Hinkley that the terms of s 36(1) apply directly to this case. Regulation 62(1)(b) stipulates that the application is to be made within a fixed period after the date on which the election is declared. That is, a period of time is prescribed, dating from a given day, for the purpose of making the inquiry application. 9 Mr Haylen then made two further arguments. He first suggested that there was in reg 62(1)(b) the expression of a contrary intention to the regime contemplated by s 36(1). He says that such expression flows from the fact that there is a date specified for the commencement of the period of six months. In my view, such an argument cannot succeed because s 36(1) itself contemplates the commencement of a period dating from a given day. In other words, whatever intention is exhibited by the regulation, it is not one which falls within the description of an intention contrary to that proposed by s 36(1) of the Acts Interpretation Act. 10 Mr Haylen finally contended that the construction of reg 62(1)(b) was to be governed by s 22 of the Acts Interpretation Act. He contended that the reference to "six months" was to be interpreted firstly by reference to s 22(1)(b) which provides that "month" shall mean a calendar month, and then by reference to s 22(1)(g) which provides: "In any Act, unless the contrary intention appears: … (g) Calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;" 11 In response Mr Hinkley submitted that the definition of calendar month simply does not arise in this case. I accept his submission. Section 22(1)(g) sets out a formula designed to pinpoint a specific calendar month commencing at a nominated day, a day known otherwise than by reference to the description in the section. The present problem concerns defining that commencement day itself. On that issue, s 22(1)(g) has nothing to say. 12 Consequently, in my view the application was commenced in time. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.