Gurmeet Rimpy v Hamilton Simmons

[2019] FWC 2850

[2019] FWC 2850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gurmeet Rimpy
v
Hamilton Simmons
(U2019/366)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 APRIL 2019

Application for an unfair dismissal remedy – voluntary liquidation – application stayed.

[1] On 10 January 2019, Ms Gurmeet Rimpy made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). United Voice, Ms Rimpy’s representative, filed the application on her behalf.

[2] In her application, ‘Hamilton Simmons’ was recorded as the legal name of the employer and the ABN was noted as 191 4279 3520. A search of the ASIC database reveals this ABN is attached to the company ‘Hamilton Simmons (Qld) Pty Limited.’ I am satisfied that ‘Hamilton Simmons (Qld) Pty Limited’ (Hamilton Simmons) is the Respondent to the application. Mr John Rad was recorded as the contact person for Hamilton Simmons.

[3] On 24 January 2019, United Voice wrote to the Commission and advised the correct contact person for Hamilton Simmons was Mr Jason Simmons. Mr Simmons’ email address was provided.

[4] On 6 February 2019, a copy of Ms Rimpy’s application was emailed to Mr Simmons, as well as the Notice of Listing containing details of the conciliation scheduled for 11 February 2019. Ultimately, the conciliation did not proceed because of the unavailability of Hamilton Simmons.

[5] On 13 February 2019, an email was received from Mr Simmons’ email address advising the company had been put into liquidation and an email address for BPS Recovery was provided.

[6] A review of the ASIC insolvency notices database showed that at a general meeting of members held on 12 February 2019, it was resolved that the company be wound up and that David Henry Sampson be appointed liquidator.

[7] On 8 March 2019, I caused correspondence to be sent to Ms Rimpy, via email and post, advising that the creditors of Hamilton Simmons had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Ms Rimpy to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view the claim cannot proceed unless she obtained leave from the Court. This correspondence was also sent to United Voice.

[8] To date, no further contact from Ms Rimpy or United Voice has been made with the Commission.

[9] 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.”

[10] Section 58AA of the Corporations Act provides the following definition in relation to the 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.”

[11] Having regard to this provision and of the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd, 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.

[12] 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.

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

DEPUTY PRESIDENT

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].