Maddison Nash v Spencil

[2018] FWC 4705

[2018] FWC 4705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maddison Nash
v
Spencil
(U2018/1028)

COMMISSIONER WILSON MELBOURNE, 13 AUGUST 2018

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

[1] On 2 February 2018, Miss Maddison Nash 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] Miss Nash named Spencil as the respondent entity in her Form F2 – Unfair Dismissal Application (Form F2). She further stated in her Form F2 that her employment had been terminated by the respondent on 30 January 2018, and that it took effect on the same day.

[3] On 6 February 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 27 February 2018.

[4] On 9 February 2018, the respondent lodged its Form F3 – Employer Response to Unfair Dismissal Application (Form F3). The Form F3 detailed the respondent’s legal name as The Trustee for Spencil Stores No. 1 Unit Trust. Further, in Questions 2.2, 3.1 and 3.2, the respondent submitted that the company had gone into voluntary receivership. Later the same day, the respondent also confirmed it would participate in the conciliation and further advised the Commission that the company would be liquidated shortly.

[5] The Commission performed a check on the ASIC insolvency notices database which showed that on 19 February 2018, at a general meeting of the members, it was resolved that Spencil Stores No. 1 Pty Ltd would be wound up and that Worrells Solvency and Forensic Accountants (Worrells) had been appointed liquidator.

[6] On 27 February 2018, the conciliation proceeded but did not settle.

[7] On 2 March 2018, directions were issued to the parties. Miss Nash was directed to file her material by no later than noon on 26 March 2018 and the respondent was directed to file its material by no later than noon on 16 April 2018.

[8] On 6 March 2018, correspondence was sent to Miss Nash, via email and express post, advising her that the creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Miss Nash to s.500(2) of the Corporations Act 2001 (Corporations Act) and stated that it was the Commission’s preliminary view that her claim could not proceed unless she obtained leave of the Court. The correspondence also noted that Miss Nash could be heard at a Telephone Mention if she had a different view, and that she was to advise the Commission by close of business on 13 March 2018 if she wished for this to occur. Further, the correspondence also noted that the directions issued on 2 March 2018 were vacated.

[9] On 30 July 2018, the Commission received correspondence from Worrells confirming that the correct respondent entity in this matter was Spencil Stores No. 1 Pty Ltd (in Liquidation). The correspondence also attached the ASIC Form 505 confirming its appointment as liquidator for the respondent. I am satisfied that Spencil Stores No 1. Pty Ltd was Miss Nash’s employer and that it is currently in liquidation.

[10] On 31 July 2018, the Commission sent correspondence to Miss Nash via email confirming that no response was received to the letter dated 6 March 2018. The email also noted that Miss Nash could discontinue her matter by filing a Form F50 – Notice of Discontinuance and requested that she provide a response by close of business on 7 August 2018.

[11] To date, Miss Nash has not made contact with the Commission.

[12] 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.”

[13] 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.”

[14] 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.

[15] 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.

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

[17] Therefore, Miss Nash’s application under s.394 of the Act is stayed until leave of the Court is granted.

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].