Chantelle Martin v Brunswick Hairfree

[2013] FWC 6527

[2013] FWC 6527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chantelle Martin
v
Brunswick Hairfree
(U2013/9396)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 SEPTEMBER 2013

Application for relief from unfair dismissal stayed pursuant to s.500(2) of the Corporations Act 2001 - Respondent in voluntary liquidation..

[1] On 9 May 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Ms Chantelle Martin. Ms Martin’s employment had been terminated by Brunswick Hairfree on 18 April 2013.

[2] On 29 May 2013, Brunswick Hairfree filed their response to Ms Martin’s application.

[3] The matter was subject of conciliation however, it was not resolved. Directions were issued and the matter was listed for hearing.

[4] On 7 August 2013, Ms Martin complied with the directions and filed her submissions.

[5] On 9 August 2013, CRS Warner Kugal advised the Commission that on 5 August 2013 it was resolved that Hudson Management Holdings Pty Limited formally trading as Hair Free Centre - Brunswick should be wound up and that Mr Steven Kugal and Mr Anthony Warner be appointed as joint and several liquidators for that purpose. The correspondence enclosed a copy of the ASIC Form 505 - External Administration Appointment of an external administrator.

[6] s.500(2) of the Corporations Act provides as follows:

(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.

[7] 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.”

[8] 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.

[9] 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.

[10] As noted earlier, Ms Martin’s application pursuant to s.394 of the Act was filed on 9 May 2013 and the passing of the resolution for winding up occurred on 5 August 2013.

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

[12] Therefore, I have decided that Ms Martin’s application pursuant to s.394 of the Act must be 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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