Mark Roberts v Ozone Manufacturing Pty Ltd

[2013] FWC 4493

[2013] FWC 4493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Roberts
v
Ozone Manufacturing Pty Ltd
(U2012/15758)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JULY 2013

Application for Unfair Dismissal Remedy - Respondent in Voluntary Liquidation - s.500(2) of the Corporations Act 2001 prohibits proceeding with civil claim - Application stayed until leave of the Court is obtained. .

[1] On 19 November 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Mark Roberts (the Applicant). It is noted in the Form F2 - Application for Unfair Dismissal Remedy (application) that the Applicant believes he was constructively dismissed and did not provide a date of termination.

[2] Ozone Manufacturing Pty Ltd (the Respondent) has not filed their response to the application.

[3] The matter was listed for conciliation however it could not take place as the Respondent could not be contacted. As the application failed to indicate a date of termination, directions were issued and the matter was listed for an extension of time hearing on 5 April 2013.

[4] On 11 February 2013, the Applicant complied with the directions and filed his submission.

[5] The Respondent failed to comply with the directions.

[6] The matter went before Commissioner McKenna who found that the date the Applicant was dismissed was 17 September 2012. 1 In addition, Commissioner McKenna granted an extension of time for the lodgement of the application. The matter was remitted for further programming.

[7] Directions were issued and the matter was listed for Arbitration hearing.

[8] On 3 June 2013, the Applicant contacted the Fair Work Commission (the Commission) and advised that the Respondent was in liquidation. The Applicant advised that Hall Chadwick had assumed the role of liquidators on behalf of the Respondent.

[9] On 14 June 2013, the Commission sent correspondence to Hall Chadwick. The correspondence requested that they provide the following information:

(a) Whether the company was placed in voluntary liquidation or by court order;

(b) the date of appointment; and

(c) evidence of the resolution of company or creditors meeting or court order placing the company in liquidation.

[10] On 21 June 2013, the Commission conducted an ASIC search and obtained a Notice of Appointment as Liquidator that confirmed that the Respondent was in voluntary liquidation.

[11] On 24 June 2013, Hall Chadwick advised the Commission that the Respondent was placed into creditors voluntary liquidation on 26 March 2013 and provided the Commission with the following documents which evidence the winding up of the Respondent and the appointment of liquidators:

a) ASIC Form 505; and

b) Minutes of a Meeting of Members of Ozone Manufacturing Pty Ltd (dated 26 March 2013).

[12] On 24 June 2013, the Commission sent correspondence to the Applicant advising, amongst other things, that pursuant to s.500(2) of the Corporations Act 2001 (Corporations Act) his claim cannot proceed unless he obtained leave of the Court.

[13] s.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.

[14] A “court” and “Court” are defined for the purposes of the Corporations Act in s.9, which provides that the meanings are given by s.58AA.

[15] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of “court” and “Court”:

“58AA 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 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[16] Having regard to this provision and of the Full Bench decision of Smith 2, 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.

[17] In Silalahi v CMI Industrial (Forge) 3, 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.

[18] As noted earlier, the Applicant’s application pursuant to s.394 of the Act was filed on 19 November 2012 and the passing of the resolution for winding up occurred on 26 March 2013.

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

Therefore, I have decided that the Applicant’s application pursuant to s.394 of the Act must be stayed until leave of the Court is granted.

DEPUTY PRESIDENT

 1   PR535404

 2 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

 3   [2012] FWA 7275 at [11] - [16]

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