David Longrigg v The Trustee for the Pidd Family Trust T/A Pidd Family Trust

[2014] FWC 3046

[2014] FWC 3046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Longrigg
v
The Trustee for the Pidd Family Trust T/A Pidd Family Trust
(U2013/12310)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 MAY 2014

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

[1] On 8 August 2013, Mr David Longrigg made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. According to Mr Longrigg’s application, his employment was terminated by The Trustee for the Pidd Family Trust T/A Pidd Family Trust (Pidd Family Trust) on 26 July 2013.

[2] On 10 September 2013, Parrotfish Pty Ltd, the trustee company of the Pidd Family Trust (Parrotfish), filed its response to the application. It is noted in this response that the correct employer was Parrotfish Pty Ltd.

[3] The matter was subject of conciliation where the parties came to an ‘in principle’ agreement. On 23 December 2013, the Commission was advised that this agreement fell through.

[4] On the same day, the Fair Work Commission (the Commission) received correspondence advising that the Parrotfish was in voluntary liquidation.

[5] The Commission performed an ASIC company check which revealed that at a general meeting of the members of Parrotfish, on 4 December 2013, it was resolved that the company be would up.

[6] On 26 March 2014, the Commission wrote to Mr Longrigg and advised him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Longrigg to s.500(2) of the Corporations Act 2001 (the Corporations Act).

[7] Section 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.

[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.”

[9] 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.

[10] 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.

[11] As noted earlier, Mr Longrigg application pursuant to s.394 of the Act was filed on 8 August 2013 and the passing of the resolution for winding up occurred on 4 December 2013.

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

[13] Therefore, Mr Longrigg’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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