James Jeffrey v Hello Hello Pty Ltd

[2014] FWC 8939

[2014] FWC 8939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Jeffrey
v
Hello Hello Pty Ltd
(U2014/11957)

COMMISSIONER LEWIN MELBOURNE, 11 DECEMBER 2014

Application for relief from unfair dismissal - respondent corporation voluntarily wound up by creditors - application stayed due to the operation of s 500(2) of the Corporations Act 2001.

Introduction

[1] This decision relates to an application for an unfair dismissal remedy, under s 394 of the Fair Work Act 2009 (the Fair Work Act), lodged by Mr James Jeffrey with the Fair Work Commission (the Commission) on 22 August 2014 against Hello Hello Pty Ltd (Hello Hello).

[2] Mr Jeffrey’s employment was terminated by Hello Hello on 18 August 2014.

[3] Hello Hello did not file a response to the application. Rather, on 20 October 2014 Pitcher Partners, the firm of accountants that had been appointed as liquidators of Hello Hello, filed a response stating that by operation of s 500(2) of the Corporations Act 2001 (the Corporations Act) Mr Jeffrey could take no further steps in the proceedings without leave of a “Court”, as defined in the Corporations Act.

[4] On 1 December 2014 the Commission requested Pitcher Partners to provide documents related to its administration of Hello Hello, including Form F505, which was filed with the Australian Securities and Investments Commission (ASIC) on 26 August 2014 and stated that Pitcher Partners was appointed as liquidator of creditors’ voluntary liquidation in respect of Hello Hello by order of the Supreme Court of Victoria on 20 August 2014.

[5] On 4 December 2014 the Commission sent a letter by express post to Mr Jeffreys and by email to Pitcher Partners that Hello Hello is subject to a creditors’ voluntary winding up and s 500(2) of the Corporations Act 2001 provides as follows:

“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.”

[6] The correspondence further indicated that the Commission is not considered to be a “Court” for the purposes of s 500(2) of the Corporations Act and as such it did not have power to grant leave as prescribed in s 500(2) of the Corporations Act for Mr Jeffrey to continue the unfair dismissal proceeding against Hello Hello.

[7] The Commission proposed it would stay the unfair dismissal proceeding pending the granting of leave by a “Court” and vacate the hearing listed for Wednesday, 10 December 2014. The Commission gave the parties until 8 December 2014 to provide submissions on that course of action.

[8] As Mr Jeffrey did not provide the Commission with an email address or fax number, he was given instructions in the correspondence that he may call the Commission by no later than 4.00pm Monday, 8 December 2014 to put the Commission and Pitcher Partners on notice of his objection to the proposed course of action and to make brief submissions.

[9] The parties did not provide any submissions in response to the Commission’s correspondence in relation to the operation of s 500(2) or the staying of the application until leave had been sought from a “Court”.

The state of Hello Hello as at 10 December 2014

[10] A search of the company register hosted on the website of ASIC for Hello Hello’s ABN number (89 091 300 908) confirms that a receiver was appointed on 20 August 2014, a liquidator was appointed on 26 August 2014, and a notice for a special resolution to wind up the company was lodged with ASIC on 27 August 2014.

[11] The Commission has also obtained from Pitcher Partners a copy of the following documents, which confirm Hello Hello’s status:

• 20/08/2014 7E6301643 Notification Of Appointment Of Receiver (505A)



• 26/08/2014 7E6316832 Notification Of Appointment Of Liquidator (Creditors' Voluntary Winding Up) (505J)



• 27/08/2014 7E6320980 Notice Under S.446a Of Special Resolution To Wind Up Company Resolution Under Reg 5.3a.07 Or S444b(2) (509DC)



• 10/09/2014 7E6355464 Presentation Of Accounts & Statement Presentation Of Final Accounts Of Administrator Of Deed Of Company Arrangement (524V)



• 10/09/2014 7E6355732 Notification Of Resignation Or Removal Of Administrator Under Deed Of Company Arrangement Under S. 449(1) (505Z)

[12] The Form 505J confirms Hello Hello was subject to a creditors’ voluntary winding up.

Legislative scheme

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

“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.”

[14] Section 58AA of the Corporations Act defines “court” and “Court” as follows:

“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.”

Consideration

[15] Section 500(2) of the Corporations Act applies to a creditors’ voluntary winding up. 1 The Form 505J indicates that Hello Hello is subject to a creditors’ voluntary winding up. Therefore, s 500(2) of the Corporations Act applies.

[16] In Silalahi v CMI Industrial (Forge), 2 Commissioner Jones considered relevant authorities and found that an application under s 394 of the Fair Work Act falls within the meaning of “civil proceedings” under s 500(2) of the Corporations Act, as follows:

“[11] A question arises as to whether an application under s.394 of the Act can be characterised as a “civil proceeding” within the meaning of s.500(2) of the Corporations Act.

[12] Civil proceeding is not defined in the Act. In Re Vassal Pty Ltd (Vassal), Justice King of the Supreme Court of Queensland considered whether the applicant was required to seek leave of the Court, under the Companies (Queensland) Code (the code), to commence an arbitration against Vassal Pty Ltd (Receivers and Managers Appointed). The primary question to be determined was whether arbitration is a civil proceeding within the meaning of the relevant section of the code.

[13] His Honour extracted the following from the judgement of King CJ in Alliance Petroleum Australia (NL) v Australia Gaslight Co (Alliance Petroleum Australia):

“Arbitration is a regular procedure recognised by statute for the resolution of legal claims, differences or disputes between parties. Rules of law are prescribed by statute for the conduct of arbitrations. Statutory powers are conferred on arbitrators. The jurisdiction of the courts is invoked in aid of the arbitration procedure. Attendance of witnesses may be compelled, witnesses may be sworn and wilfully false evidence before an arbitrator constitutes the crime of perjury. The procedure results in an award which is enforceable at law. Arbitration is clearly recognised by the statute as a method of resolving legal disputes alternative to litigation in the courts. I think that in the ordinary use of language such a procedure would be included in the description in the description ‘civil proceedings’.”

[14] Having regard to the authorities and in particular the passage from Alliance Petroleum Australia cited above, Justice Kelly in Vassal found that the phrase “civil proceeding” includes arbitration.

[15] It is abundantly clear that an unfair dismissal application under s.394 of the Act will, unless settled or discontinued for other reasons, result in arbitration. The description of arbitration by Chief Justice King in Alliance Petroleum Australia is apt to describe the process of arbitration conducted in proceedings under the Act.

[16] Having regard to the authorities considered and the nature of arbitration proceedings which follow from a s.394 application, I find that an application under s.394 of the Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.”

(citations omitted)

[17] I have had regard to the decision in Smith v Trollop Silverwood & Beck Pty Ltd 3 and s 58AA of the Corporations Act and am satisfied that the Commission is not a “Court” for the purposes of s 500(2) of the Corporations Act and would therefore be unable to consider an application to grant leave for Mr Jeffrey to continue the unfair dismissal application against Hello Hello.

[18] Taking into account the provisions in s 500(2) of the Corporations Act, I am satisfied that Mr Jeffrey’s application for an unfair dismissal remedy cannot proceed any further except by leave of a “Court”, as defined in s 58AA of the Corporations Act.

Decision

[19] I have decided that Mr Jeffrey’s application for an unfair dismissal remedy made under s 394 of the Fair Work Act must be stayed pending leave of a “Court” (as defined in s 58AA of the Corporations Act).

COMMISSIONER

 1   Awada v Linknarf Ltd (In Liq) (2002) 55 NSWLR 745, 750.

 2   [2012] FWA 7275.

 3 (2003) 142 IR 137.

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