Andrew Valentine v DH International Pty Limited T/A DH International

[2013] FWC 8862

[2013] FWC 8862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Valentine
v
DH International Pty Limited T/A DH International
(U2013/1266)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 NOVEMBER 2013

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 18 April 2013, Mr Andrew Valentine made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Valentine’s employment was terminated by DH International Pty Limited T/A DH International (DH International)on 2 April 2013.

[2] Conciliation was listed, however could not take place.

[3] On 30 May 2013, Mr Valentine provided the Fair Work Commission (the Commission) with correspondence he received from DH International advising that they were in voluntary administration.

[4] On 31 May 2013, the Commission received DH International’s Form F3 - Response to the Application for Unfair Dismissal. In that form it was noted by Mr David Hoffman that the company “was insolvent and unable to continue operations”.

[5] A search of the ASIC insolvency database revealed that on 30 July 2013, DH International passed a special resolution and went into voluntary liquidation.

[6] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of “court” and “Court”:

“58AA Meaning of court and Court

(1) Subject to subsection (2), in this Act:

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(c) the Family Court of Australia;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[7] Having regard to this provision and of the Full Bench decision of Smith 1, I am satisfied that the Commission is not a “Court” and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.

[8] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[9] As noted earlier, Mr Valentine’s application pursuant to s.394 of the Act was filed on 18 April 2013 and the passing of the resolution for winding up occurred on 30 July 2013.

[10] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Valentine’s application cannot proceed any further in the Commission except by leave of the Court.

[11] Therefore, Mr Valentine’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

 1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

 2   [2012] FWA 7275 at [11] - [16]

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