Hugh Robinson v Robinson Precision Engines Pty Limited

[2018] FWC 1524

[2018] FWC 1524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hugh Robinson
v
Robinson Precision Engines Pty Limited
(U2018/855)

DEPUTY PRESIDENT DEAN SYDNEY, 14 MARCH 2018

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

[1] On 29 January 2018, Mr Hugh Robinson made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Robinson Precision Engines Pty Limited (the Respondent). Mr Robinson stated that the dismissal occurred on 8 January 2018.

[2] On 6 March 2018 correspondence was received from Chamberlain’s S.B.R. Chartered Accountants (CSBR) advising that Mr Chris Chamberlain and Mr Steven Priest were appointed Joint and Several Liquidators of the Respondent on 30 January 2018.

[3] On 9 March 2018 CSBR provided the Commission with a number of documents which evidenced that the Respondent had been placed into voluntary liquidation by its creditors.

[4] The Commission sent correspondence to Mr Robinson which advised that the Commission had formed the preliminary view that his claim for unfair dismissal cannot proceed without leave of the Court. The correspondence set out s.500(2) of the Corporations Act 2001 (the Corporations Act) and Mr Robinson was asked if he wished that the matter be set down for jurisdiction hearing.

[5] On 14 March 2018 Mr Robinson advised the Commission that he would seek leave from the Court.

[6] Section 500(2) of the Corporations Act provides:

(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 & Ors v Trollop 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.

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

[11] Therefore, this application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

<PR601165>

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].

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