David Costanzo v Global Intellectual Group

[2022] FWC 2453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Costanzo
v

Global Intellectual Group

(U2015/16437)

COMMISSIONER BISSETT

MELBOURNE, 14 SEPTEMBER 2022

Application for an unfair dismissal remedy - deregistration - application dismissed.

On 22 April 2016 the Fair Work Commission issued a Decision[1] in relation to the application by Mr David Costanzo (Applicant) for remedy for unfair dismissal.

The Applicant had named Global Intellectual Group (Respondent) as the Respondent entity in the Form F2 – Unfair Dismissal Application (Form F2). The Commission performed a check on the ASIC liquidation notices database which confirmed that on 15 March 2016 at a special meeting of the Respondent’s creditors, a resolution was passed for the Respondent to be wound up voluntarily.

The Decision issued on 22 April 2016 stayed the Applicant’s application on the basis that the Respondent was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, the application was not able to proceed except by leave of the Court.[2]

On 2 September 2022 the Commission performed a search on the ASIC company database which revealed that the Respondent entity had been deregistered on 28 August 2021.

On 5 September 2022 the Commission wrote to the Applicant advising of the Respondent’s deregistration and that no proceedings can continue against a deregistered company. On that basis the Applicant was given an opportunity to file a Form F50–Notice of Discontinuance (Notice of Discontinuance). The Applicant was advised that if no Notice of Discontinuance is received by 12 September 2022 the application may be dismissed because it has no reasonable prospects of success. The Applicant did not respond to the correspondence or file a Notice of Discontinuance.

In the circumstances, I am satisfied that the Applicant’s application has no reasonable prospects of success. Therefore, I will exercise my power under s.587(1)(c) of the Fair Work Act 2009 to dismiss the application. An order[3] giving effect to this decision will be issued separately.

COMMISSIONER

[1] [2016] FWC 2589

[2] Ibid

[3] PR745828

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

David Costanzo filed an unfair dismissal application against Global Intellectual Group before the Fair Work Commission. The application was initially stayed in 2016 when it was discovered that Global Intellectual Group had gone into liquidation. The Commission later discovered that the company had been deregistered in August 2021. This raised the issue of whether the application could proceed against a deregistered entity. The Commissioner was required to decide whether the application had reasonable prospects of success and whether it should be dismissed.

The Commissioner found that the application had no reasonable prospects of success because it could not proceed against a deregistered company. The Commissioner noted that the applicant was given an opportunity to discontinue the application but did not respond. The Commissioner also noted that the application had been stayed for some time and the circumstances had not changed in a way that would make the application viable. The Commissioner exercised their power under the Fair Work Act to dismiss the application.

The Fair Work Commission dismissed David Costanzo's unfair dismissal application against Global Intellectual Group on the basis that the application had no reasonable prospects of success and could not proceed against a deregistered entity. The Commissioner noted that the applicant had not responded to the Commission's correspondence and had not filed a notice of discontinuance. The Commissioner found that the application was unlikely to succeed and therefore dismissed it. An order giving effect to this decision will be issued separately.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established