Ian Nattrass v Sharing Minds Pty Ltd

[2013] FWC 4075

[2013] FWC 4075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Nattrass
v
Sharing Minds Pty Ltd
(U2012/16727)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 JULY 2013

Application for Unfair Dismissal - Voluntary Liquidation - Application Stayed.

[1] On 11 December 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Ian Nattrass (the Applicant). The Applicant’s employment had been terminated by Sharing Minds Pty Ltd (the Respondent) on 28 November 2012.

[2] On 28 December 2013, the Respondent filed their response to the application. The Respondent filed a jurisdictional objection to the application claiming that:

(a) the Applicant’s claim was vexatious; and

(b) the Applicant’s income exceeded the high income threshold.

[3] The matter was subject of conciliation however, it was not resolved. Directions were issued and the matter was listed for hearing. I note that at the conciliation, the Respondent withdrew their jurisdictional objection.

[4] On 17 March 2013, the Applicant complied with the directions and filed his submissions.

[5] On 17 April 2013, the Applicant’s Representative filed a Notice Ceasing to Act and advised that the Respondent was “in liquidation and [was] no longer an identity”.

[6] On 24 April 2013, the Commission sent correspondence to Ms Anne Meagher of SV Partners (SV Partners). The correspondence requested that SV Partners provide the following information:

(a) the date of appointment;

(b) evidence of the resolution of the directors to appoint administrators; and

(c) which provisions of the Corporations Act 2001 (Corporations Act) apply to the Applicant’s s.394 application.

[7] On 29 April 2013, SV Partners advised the Commission that the Respondent has Joint and Several Liquidators appointed on 17 April 2013.

[8] On 17 May 2013, SV Partners provided the Commission with the following documents which evidence the winding up of the Respondent and the appointment of liquidators:

(a) Minutes of a Meeting of Members of Sharing Minds Pty Ltd (17 April 2013);

(b) Form 505 - External Administration Appointment of an External Administrator (17 April 2013);

(c) Form 205 - Notification of Resolution - Voluntary Winding Up (17 April 2013); and

(d) Minutes of Meeting of Creditors of Sharing Minds Pty Ltd (in Liquidation) (3 May 2013).

[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] A “court” and “Court” are defined for the purposes of the Corporations Act in s.9, which provides that the meanings are given by s.58AA.

[11] 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.”

[12] 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.

[13] 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.

[14] As noted earlier, the Applicant’s application pursuant to s.394 of the Act was filed on 11 December 2012 and the passing of the resolution for winding up occurred on 17 April 2013.

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

[16] Therefore, I have decided that the Applicant’s application pursuant to s.394 of the Act must be 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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