Jenkins v The Blackwood Property Trust T/As Office and Industrial Cleaning Pty Ltd
[2012] FMCA 1168
•4 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JENKINS v THE BLACKWOOD PROPERTY TRUST T/AS OFFICE AND INDUSTRIAL CLEANING PTY LTD | [2012] FMCA 1168 |
| INDUSTRIAL LAW – General protections and wrongful dismissal claims – amendment of description of respondent company – respondent company said to be in liquidation but no evidence adduced to establish same – transfer of matter to Federal Court. |
| Corporations Act 2001 (Cth), ss.58AA, 471B & 1325 |
| Cass v Kingston Capital Limited [2010] FMCA 762 |
| Applicant: | SAMANTHA JANE JENKINS |
| Respondent: | THE BLACKWOOD PROPERTY TRUST T/AS OFFICE AND INDUSTRIAL CLEANING PTY LTD |
| File Number: | PEG 83 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 4 December 2012 |
| Date of Last Submission: | 4 December 2012 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| The Applicant | In person |
| Counsel for the Respondent: | Mr N. Oud |
| Solicitors for the Respondent: | Standpoint Legal |
ORDERS
That on the application of the applicant, and not opposed by the respondent, the name of the respondent will be amended to read “The Blackwood Property Trust trading as Office and Industrial Cleaning Pty Ltd”.
That the Application filed on 10 April 2012 is transferred to the Federal Court of Australia and listed for directions on a date and at a time to be advised.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 83 of 2012
| SAMANTHA JANE JENKINS |
Applicant
And
| THE BLACKWOOD PROPERTY TRUST T/AS OFFICE AND INDUSTRIAL CLEANING PTY LTD |
Respondent
REASONS FOR JUDGMENT
There is no opposition to the two orders I am proposing to make and I made it clear, I think, in my colloquy with the applicant and with Mr Oud, why I thought it is appropriate to make the order amending the respondent’s name.
The misdescription of the respondent company was something identified in the Response filed by the respondent as far back as 3 May 2012. It did not prevent the parties attending mediation conferences as recently as 16 November 2012; it did not prevent the parties entering into a Deed of Release much earlier this year. I am satisfied, on the material before me, that it is a matter that the parties presumed would be dealt with at this stage of the proceedings should they have progressed this far, by formal correction of the misdescription, and that is why I will make that order.
As to the second order, which is also not opposed by either party, it is contended today by Mr Oud, on behalf of a representative of the respondent, that the company (The Blackwood Property Trust t/as Office and Industrial Cleaning Pty Ltd) is now in liquidation. If that is the case then s.471B of the Corporations Act 2001 (“the Act”) comes into play. That provides: -
While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:
(a) a proceeding in a court against the company or in relation to property of the company; or
(b) enforcement process in relation to such property;
except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
When the matter commenced today, there was no evidence of any kind before the Court in relation to whether that was the case. I stood the matter down for a short time and, when the hearing resumed I was presented with, firstly, a Statement of Claim against that company which is said to have set out the debt which grounded the liquidation. I was also provided with a facsimile on the header of a third party (Mr Oud explained to me how that third party came to be involved in the exchange) and then within the body of that email there was what purported to be an email from an officer of the New South Wales Corporate Affairs Commission referring to the liquidation. I did not admit either of those documents into evidence. They were returned to Mr Oud. They were a long way from being the kind of evidence that would satisfy the Court that the company is in fact in liquidation.
The question then becomes whether we should simply proceed with the hearing today and what concerns me about that is that Court time would be utilised, and the time of the parties would be utilised in what would be a sterile exercise if in fact the liquidation has been effected. If I posit the possibility that it has been effected, it seems to me the appropriate way to proceed is to transfer this matter to the Federal Court. The Federal Court has the jurisdiction under s.471B of the Act to give leave for the proceedings against the company to continue. This Court does not have that power. I am satisfied that such is the case on account of the wording of s.58AA of the Act.
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.
There is a decision of Lucev FM (Cass v Kingston Capital Limited [2010] FMCA 762) where his Honour accepted, in the context of a summary dismissal application, and in the context of the exercise of the associated or accrued jurisdiction of the Federal Magistrates Court, the arguability of the contention that subsection (2) of s.58AA was not an effective bar to a proceeding being conducted in the Federal Magistrates Court under s.1325 of the Act.
But this matter is free from the complexities of the application before his Honour. I am satisfied that there is a clear expression of a contrary intention here. It is “Court” that is referred to in s.471B and that means that it is only the Federal Court, the Supreme Court of a State or Territory or the Family Court that is able to grant the leave, and clearly the most appropriate venue for an application for the grant of leave, if such an application is made by the applicant, would be the Federal Court, that is, the Court that is able to make the order.
Of course, we will only reach that stage if evidence is adduced that the company is in fact in liquidation.
The transcript of today’s hearing will contain references to those irregularities associated with the respondent’s conduct of these proceedings which may be material to the grant of that leave.
In those circumstances, it is expedient for me to transfer this matter to the Federal Court and I so order.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 5 December 2012
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