Mary Jane Young Pak Kian v Adatanet Australia Pty Ltd T/A the Mussel Bar Restaurant

[2016] FWC 3298

[2016] FWC 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mary Jane Young Pak Kian
v
Adatanet Australia Pty Ltd T/A The Mussel Bar Restaurant
(U2015/16711)

COMMISSIONER WILSON MELBOURNE, 25 MAY 2016

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 14 December 2015, Ms Mary Jane Young Pak Kian made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Young Pak Kian’s employment was terminated by Adatanet Australia Pty Ltd T/A The Mussel Bar Restaurant on 28 July 2015.

[2] On 16 December 2016, Ms Young Pak Kian filed further material in the Commission and advised that on 29 July 2015 she was informed by the General Manager that The Mussel Bar went into liquidation.

[3] The Commission performed a search on the ASIC insolvency notices database which revealed that at the general meeting of members of the Company on 28 July 2016, it was resolved that the company would be wound up and that a liquidator be appointed.

[4] On 16 May 2016, the Commission wrote to Ms Young Pak Kian and advised her that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred her to s.500(2) of the Corporations Act 2001.

[5] Ms Young Pak Kian was invited to be heard in relation to the Commission’s position if she disagreed. Ms Young Pak Kian did not respond to the Commission’s correspondence.

[6] 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.”

[7] 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.”

[8] Having regard to this provision and of the Full Bench decision of Smith 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.

[9] 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.

[10] As noted earlier, Ms Young Pak Kian’s application pursuant to s.394 of the Act was filed on 14 December 2015 and the passing of the resolution for winding up occurred on 28 July 2016.

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

[12] Therefore, Young Pak Kian’s application under s.394 of the Act is stayed until leave of the Court is granted.

COMMISSIONER

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

 2   [2012] FWA 7275 at [11] - [16]

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