Jamileh Anna Hargreaves v Youth Development Australia

[2024] FWC 680

[2024] FWC 680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jamileh Anna Hargreaves
v

Youth Development Australia

(U2023/12359)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MARCH 2024

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

1. On 11 December 2023, Ms Jamileh Hargreaves made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Hargreaves’ application did not identify a Respondent and following correspondence with the Commission, Ms Hargreaves filed an amended application naming Youth Development Australia as the Respondent (the Respondent) to her application.

1. A conciliation conference before a staff conciliator of the Commission was listed for Friday, 2 February 2024. On 5 February 2024, in conversation with a Commission staff member, the Respondent advised that it was in liquidation. The Respondent later emailed the Commission noting that Andrew Poulter and Nick Davies of IRT Advisory had been appointed to manage the liquidation process for the Respondent.

1. On 8 January 2024, a representative from IRT Advisory contacted the Commission via telephone to advise that it would not participate in a conciliation conference. Shortly after, the Commission received an email from IRT Advisory to the same effect. An ASIC Form 505 was attached to this correspondence, which confirmed the type of administrator appointed as a liquidator of creditors’ voluntary liquidation.

1. On 23 January 2024, the matter was referred to me for consideration. A review of the ASIC notices database showed that a general meeting of the members of the Respondent was held on 29 November 2023, where it was resolved that the Respondent would be wound up and that Andrew William Poulter had been appointed as a liquidator.

1. That day, I caused correspondence to be sent to Ms Hargreaves. This correspondence advised Ms Hargreaves that the creditors of the Respondent had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Ms Hargreaves to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that her claim could not proceed unless she obtained leave of the Court. Ms Hargreaves was requested to confirm whether she intended to seek leave of the Court by Wednesday, 7 February 2024.

1. Some further correspondence ensued, culminating on 6 March 2024 when Ms Hargreaves wrote to the Commission to advise that she intends to proceed with her application to the Court.

1. Section 500(2) of the Corporations Act 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.”

1. 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 Federal Circuit and Family Court of Australia (Division 1);

(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.”

1. Having regard to 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 the required leave as prescribed under s.500(2) of the Corporations Act. A review of relevant authorities in Silalahi v CMI Industrial (Forge)[2] further satisfies me 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.

1. Section 500(2) of the Corporations Act applies in this case and I am satisfied that Ms Hargreaves’ application cannot proceed any further with the Commission except by leave of the Court. The application is therefore stayed.

DEPUTY PRESIDENT

<PR772402>

[1] (2003) 142 IR 137.

[2] [2012] FWA 7275 at [11]-[16].

Printed by authority of the Commonwealth Government Printer