Diego Ortiz Parra v Live Fashion Group Pty Ltd ATF the Live Fashion Unit Trust (In Liquidation)

[2022] FWC 3165

[2022] FWC 3165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Diego Ortiz Parra

v

Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust (In Liquidation)

(C2022/3883)

COMMISSIONER PLATT ADELAIDE, 30 NOVEMBER 2022

Application to deal with contraventions involving dismissal – dismissed pursuant to s.587 of the Fair Work Act 2009

1. On 1 July 2022, Mr Diego Ortiz Parra (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that he was dismissed in contravention of the general protections provisions of the Act (the Application). The Application stated that his employment was terminated by Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust (Live Clothing) on 14 June 2022.

1. The Respondent filed a form F8A Employer Response on 21 July 2022. The response contained a copy of a “Form 505 - Appointment of an administrator or controller” document which indicated that a resolution had been made that the company would be wound up voluntarily. The document indicates that Mr Shaun William Boyle of BRI Ferrier Western Australia was appointed as a “Liquidator of creditors’ voluntary liquidation” on 2 May 2022.

1. The Respondent indicated in their form F8A that they objected to the application on the basis that the company had been placed in creditors’ liquidation, and as a result of s.500(2) of the Corporations Act 2001 (Cth) (the Corporations Act), the application cannot proceed except by leave of the “Court” as defined by s.58AA of the Corporations Act.

1. On 25 August 2022, I published a statement[1] in respect of the matter (the Statement).

1. In the Statement, I dealt with the Respondent’s jurisdiction objection as follows:

“[6] Section 500 of the Corporations Act provides:

Execution and civil proceedings

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.

[7] The first issue is whether the Fair Work Commission is a “Court” within the meaning of s.500(2) of the Corporations Act and thereby retains the power to grant leave.

[8] The definition of Court is outlined at s.58AA of the Corporations Act:

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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.

[9] Upon reviewing s.58AA of the Corporations Act and the case of Smith v Trollope Silverwood & Beck Pty Ltd¹, it is clear that the Commission is not a “Court”, and it cannot grant leave as required by s.500(2) of the Act.

[10] The second issue is whether a general protections application can be characterised as falling within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[11] As a result of the Decision in Coles Supply Chain Pty Ltd v Milford,² the Commission has an obligation to deal with jurisdictional issues, including this one, before the it can issue a certificate which would allow the matter to proceed in the Court. In my view, an application under s.365 is a civil proceeding as described by s.500(2) of the Corporations Act.

[12] In this matter, Live Clothing appears to have been placed into creditors’ voluntary liquidation by resolution on 2 May 2022.

[13] I find that s.500(2) of the Act applies and the Commission has no jurisdiction to consider the application until leave is granted by the appropriate Court.”

1. At the conclusion of the Statement, I adjourned the matter for three months, until 24 November 2022, to allow the Applicant an opportunity to obtain leave pursuant to s.500 of the Corporations Act.

1. By 24 November 2022, the Applicant had provided no communication to my Chambers. Directions were issued on 24 November 2022, requiring the Applicant to provide evidence of leave being granted by a “Court”, or in the alternative, written submissions as to why the matter ought not to be dismissed, by no later than 29 November 2022 (the Directions).

1. On 28 November 2022, the Applicant telephoned my Chambers, and indicated to my Associate that he had not been granted, nor had he sought, leave from a “Court” such that the matter could continue. The Applicant did indicate, however, that he would be filing written submissions as to why the matter should proceed. The Applicant failed to file any such submissions in compliance with the Directions.  

1. Section 587 of the Act provides:

“Dismissing applications

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)  the application is not made in accordance with this Act; or

(b)  the application is frivolous or vexatious; or

(c)  the application has no reasonable prospects of success.

Note:         For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)  is frivolous or vexatious; or

(b)  has no reasonable prospects of success.

(3)  The FWC may dismiss an application:

(a)  on its own initiative; or

(b)  on application.”

1. In McLeod v Kulgera Trading Company Pty Ltd,[2] Catanzariti VP held that s.587 of the Act was sufficiently broad to allow a s.365 application to be dismissed for want of prosecution.

1. The Applicant in the matter before me has been given reasonable opportunity, both through the Statement and the Directions, to obtain the necessary leave from a “Court” such that the matter could be continued. It is not fair to the Respondent to allow the Application to be held indefinitely in a situation when the Applicant has not demonstrated any willingness to take the necessary measures to prosecute his case.

1. I adopt the approach taken by Vice President Catanzariti and find that "fairness, justice, equity and good conscience"[3] warrant the dismissal of this application.

1. An Order[4] dismissing Mr Ortiz Parra’s application will be issued concurrently.

COMMISSIONER

[1] [2022] FWC 2259.

[2][2014] FWC 2112.

[3] Ibid [10].

[4] PR748434.

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