Costanzo v Global Intellectual Group

[2016] FWC 2589

[2016] FWC 2589

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
David Costanzo
v
Global Intellectual Group
(U2015/16437)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 22 APRIL 2016

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

[1]        On 2 December 2016, Mr David Costanzo made an application for remedy for unfair

dismissal under s.394 of the Fair Work Act 2009. Mr Costanzo’s employment was notified of

his termination from Global Intellectual Group on 14 October 2015.

[2]        On 27 January 2016, Global Intellectual Group filed their response to the application.

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[3] On 2 March 2016, Senior Deputy President Drake granted an extension of time to Mr

Costanzo for the late filing of his application.

[4]        On 3 March 2016, Mr Costanzo sent correspondence to the Commission which

explained that external administrators were appointed to the company.

[5]        The Commission performed a check on the ASIC liquidation notices database which

confirmed that on 15 March 2016 at a special meeting of the company’s creditors, a resolution

was passed for the company to be would up voluntarily.

[6]        On 6 April 2016, the Commission wrote to Mr Costanzo and advised him that

creditors had passed a resolution to voluntarily wind up the company and had appointed a

liquidator. The letter referred Mr Costanzo to s.500(2) of the Corporations Act 2001. Mr

Costanzo was invited to be heard in relation to the Commission’s position if he disagreed. Mr

Costanzo did not respond to the Commission’s correspondence.

[7] 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.”

[2016] FWC 2589

[8] 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.”

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[9] Having regard to this provision and of the Full Bench decision of Smith , 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.

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[10] In Silalahi v CMI Industrial (Forge) , 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.

[11] As noted earlier, Mr Costanzo’s application pursuant to s.394 of the Act was filed on 2

December 2016 and the passing of the resolution for winding up occurred on 15 March 2016.

[12] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am

satisfied that Mr Costanzo’s application cannot proceed any further in the Commission except

by leave of the Court.

[2016] FWC 2589

[13] Therefore, Mr Costanzo’s application under s.394 of the Act is stayed until leave of

the Court is granted.

DEPUTY PRESIDENT

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PR577618.

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

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[2012] FWA 7275 at [11] - [16]