Despina Nassialis v Judy & David Barmakov T/A Casual Guy Pty Ltd

[2014] FWC 2458

[2014] FWC 2458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Despina Nassialis
v
Judy & David Barmakov T/A Casual Guy Pty Ltd
(U2012/14755)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 APRIL 2014

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

[1] On 2 November 2012, Ms Despina Nassialis made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Nassialis’ employment was terminated by Judy & David Barmakov T/A Casual Guy Pty Ltd on 23 October 2012.

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

[3] On 19 November 2012, Mr Barmakov telephoned the Fair Work Commission (the Commission) to advise the company had gone into liquidation.

[4] On 23 November 2012, the Commission received correspondence from Bent & Cougle Pty Ltd Chartered Accountants advising that a general meeting of creditors had resolved to wind up the company and it was placed in liquidation on 24 October 2012.

[5] On 8 March 2013, the Commission wrote to Ms Nassialis and advised her that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Ms Nassialis to s.500(2) of the Corporations Act 2001 (the Corporations Act).

[6] 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.

[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 Nassialis’ application pursuant to s.394 of the Act was filed on 2 November 2012 and the passing of the resolution for winding up occurred on 24 October 2012.

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

[12] Therefore, Ms Nassialis’ application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

<Price code A, PR549613>

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

 2   [2012] FWA 7275 at [11] - [16]

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