Janaka Athukorala v Aussie Milk Products Pty Ltd

[2019] FWC 3351

[2019] FWC 3351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janaka Athukorala
v
Aussie Milk Products Pty Ltd
(U2019/1066)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 MAY 2019

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

[1] On 3 February 2019, Mr Janaka Athukorala 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).

[2] On 2 March 2019, the Commission received email correspondence from Mr Brendan Nicholls, the Director of Aussie Milk Products Pty Ltd (AMP), advising that AMP had entered voluntary administration on 24 January 2019. The contact details of the administrators Veritas Advisory were provided by Mr Nicholls.

[3] On 5 March 2019, the Commission contacted Veritas Advisory regarding their participation in conciliation. The Commission was advised that Veritas Advisory was unlikely to participate in conciliation but that they would confirm this.

[4] The conciliation on 6 March 2019 did not proceed due to the unavailability of a contact person from AMP and Veritas Advisory declining to participate. The matter was then referred for further case management.

[5] A Notice of Listing for a telephone Mention was issued to parties on 29 April 2019.

[6] The telephone Mention was held before me on 1 May 2019 to discuss future programming. At the mention, I was advised by Mr Chris Kindis of Veritas Advisory that a second meeting of creditors was scheduled to take place on 7 May 2019. I requested that I be informed as to the outcome of that meeting.

[7] On 10 May 2019, the Commission received email correspondence from Mr Kindis advising that AMP had been placed into liquidation as a result of the second meeting of creditors. A copy of the Australian Securities and Investments Commission Form 505 was also provided to the Commission.

[8] A review of the ASIC insolvency notices database showed that at the meeting of creditors on 7 May 2019, it was resolved that the Company be wound up voluntarily and that Steven Naidenov and David Nicholas Iannuzzi be appointed joint liquidators. Mr Naidenov and Mr Iannuzzi were appointed on 7 May 2019.

[9] On 14 May 2019, I caused correspondence to be sent to Mr Athukorala advising that the creditors of Aussie Milk Products Pty Ltd had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Athukorala to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view the claim cannot proceed unless he obtained leave from the Court.

[10] To date, no further contact from Mr Athukorala has been made with the Commission.

[11] 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.”

[12] 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.”

[13] 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.

[14] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].