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

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

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.

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.

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Diego Ortiz Parra v Live Fashion Group Pty Ltd ATF the Live Fashion Unit Trust (In Liquidation) [2022] FWC 3165
Case: [2022] FWC 3165
Decision Date: 30 NOVEMBER 2022

CaseChat Overview and Summary

The case of Diego Ortiz Parra v Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust (In Liquidation) was heard by the Fair Work Commission, specifically Commissioner Platt, in Adelaide. The applicant, Mr Diego Ortiz Parra, filed an application under section 365 of the Fair Work Act 2009 alleging that he was dismissed in contravention of the general protections provisions of the Act by the respondent, Live Fashion Group Pty Ltd. The respondent filed a form F8A Employer Response, objecting to the application on the basis that the company had been placed in creditors’ liquidation and the application could not proceed except by leave of the Court as defined by section 58AA of the Corporations Act 2001. Commissioner Platt dealt with the respondent's jurisdiction objection and found that the Fair Work Commission is not a “Court” within the meaning of section 500(2) of the Corporations Act and therefore could not grant leave. The Commission also found that an application under section 365 is a civil proceeding as described by section 500(2) of the Corporations Act. The matter was adjourned to allow the applicant an opportunity to obtain leave from a Court, however, the applicant failed to provide evidence of leave or file written submissions as to why the matter should proceed.

The primary legal issues in this case were whether the Fair Work Commission is a "Court" within the meaning of section 500(2) of the Corporations Act and whether a general protections application can be characterised as falling within the meaning of "civil proceedings" in section 500(2) of the Act. The Commission found that the Fair Work Commission is not a "Court" and could not grant leave and that an application under section 365 is a civil proceeding as described by section 500(2) of the Corporations Act. Commissioner Platt also found that the matter could be dismissed for want of prosecution, as the applicant had been given reasonable opportunity to obtain the necessary leave from a Court but had not demonstrated any willingness to take the necessary measures to prosecute his case.

The Fair Work Commission found that the application was properly dismissed for want of prosecution and that it was not fair to the respondent to allow the application to be held indefinitely in a situation when the applicant had not demonstrated any willingness to take the necessary measures to prosecute his case. The Commission adopted the approach taken by Vice President Catanzariti in McLeod v Kulgera Trading Company Pty Ltd and found that "fairness, justice, equity and good conscience" warranted the dismissal of this application. An Order dismissing Mr Ortiz Parra’s application was issued concurrently.

Orders