Dong Xu v 123 Sydney Management Pty Ltd

[2014] FWC 1064

[2014] FWC 1064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dong Xu
v
123 Sydney Management Pty Ltd
(U2013/14267)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 FEBRUARY 2014

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

[1] On 6 October 2013, Mr Dong Xu made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Xu’s employment was terminated by 123 Sydney Management Pty Ltd (123 Sydney Management) on 16 September 2013.

[2] On 26 November 2013, the Fair Work Commission (the Commission) received correspondence from Fraser Insolvency Advisory advising that 123 Sydney Management was in voluntary liquidation.

[3] Conciliation was listed for 5 December 2013 however, it could not take place.

[4] On 2 January 2014, the Commission performed an ASIC insolvency search which confirmed the advice received from Fraser Insolvency Advisory.

[5] On 9 January 2014, correspondence was sent to Mr Xu referring him to s.500(2) of the Corporations Act 2001 (the Corporations Act). The correspondence informed Mr Xu that I had formed the preliminary view that his claim cannot proceed unless leave of the Court is obtained. Mr Xu was given the opportunity to make submissions if he did not agree with my view.

[6] Mr Xu did not respond to the Commission’s correspondence or advise that he wished to be heard on the matter.

[7] s.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 Xu’s application pursuant to s.394 of the Act was filed on 6 October 2013 and the passing of the resolution for winding up occurred on 22 November 2013.

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

[13] Therefore, Mr Xu’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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