Matthews v Citigroup Pty Ltd (in Liq) - [2003] WASC 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MATTHEWS -v- CITIGROUP PTY LTD (IN LIQ) [2003] WASC 87

CORAM: MASTER NEWNES

HEARD: 30 APRIL 2003

DELIVERED : 30 APRIL 2003

PUBLISHED : 13 MAY 2003

FILE NO/S: COR 390 of 2002

BETWEEN: ANTHONY GEOFFREY MATTHEWS
Plaintiff
AND
CITIGROUP PTY LTD (IN LIQ) (ACN 082 311 288)
Defendant

Catchwords:

Practice and procedure - Corporations Act 2001 (Cth) s 500 - Application for leave to proceed in Industrial Relations Commission - Turns on own facts

Legislation:

Corporations Act2001 (Cth), s 500

Result:

Leave granted

Category: B

Representation:

Counsel:

Plaintiff: Dr J O'Donovan & Mr B R Jackson
Defendant: No appearance

Solicitors:

Plaintiff: Gadens Lawyers
Defendant: No appearance

Case(s) referred to in judgment(s):

Executive Director of the Department of Conservation and Land Management v RingFab Environmental Structures Pty Ltd, unreported; Fed Ct (Lee J); 6 November 1997
Ogilvie‑Grant v East (1983) 7 ACLR 669

Case(s) also cited:

Humber & Co v John Griffiths Cycle Co (1901) 85 LT 141
In re Keystone Knitting Mills Trade Mark [1929] 1 Ch 92
Langley Constructions (Brixham) Ltd v Wells [1969] 1 WLR 503
Lean v Tumut River Orchard Management Ltd, unreported; FedCt; 20 November 2002
Re Grant and Grant Pty Ltd (1982) 6 ACLR 196
Re Sydney Formworks Pty Ltd (In Liq) [1965] NSWR 646
Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 1 All ER 564

MASTER NEWNES: On 30 April 2003 I made orders in this matter that the plaintiff have leave nunc pro tunc from 14 March 2002 to proceed with his application in the Western Australian Industrial Relations Commission ("the Commission") and to take all steps taken on that application, leave nunc pro tunc from 14 March 2002 to discontinue or strike out the application against the defendant, leave nunc pro tunc from 14 March 2002 to institute and proceed in the appeal against the defendant by filing and serving the notice of appeal on all interested parties, by relisting the appeal for hearing and by arguing the appeal, leave nunc pro tunc to take all steps taken against the defendant in relation to the appeal, and leave nunc pro tunc to discontinue and/or strike out the appeal so far as it relates to the defendant.
I said I would deliver reasons later. Those reasons are as follows.
This application by the plaintiff is pursuant to s 500 of the Corporations Act2001 (Cth) for leave to proceed against the defendant in proceedings in the Commission. An affidavit of Brian Raphael Jackson sworn 16 April 2003 has been filed in support of the application.
I was informed at the outset of the hearing by counsel for the plaintiff that his instructing solicitors had been notified by the liquidators of the defendant that the liquidators neither consented nor objected to the application.
This application arises in a somewhat unusual way. On 17 August 2001, the plaintiff filed an application in the Commission against Cool or Cosy Pty Ltd, Ceil Comfort Home Insulation Pty Ltd and the defendant alleging unlawful dismissal.
On 14 March 2002, liquidators were appointed to the defendant pursuant to a creditors' voluntary winding up.
The proceedings in the Commission came on for hearing on 9 April 2002. Counsel for the plaintiff informed the Commission that, as the defendant was in liquidation, the plaintiff was not proceeding against it. The hearing of the application then proceeded against the other respondents.
On 21 October 2002, the Commission dismissed the application against Cool or Cosy Pty Ltd and Ceil Comfort Home Insulation Pty Ltd and ordered the plaintiff to advise the Commission of his intention in respect of the application so far as it related to the defendant within 14 days. That time period was subsequently amended to 28 days.
On 20 November 2002, the plaintiff filed a notice of appeal in the Commission against all of the respondents. The following day an application was filed to stay the operation of the order requiring the plaintiff to advise of his intentions with respect to the defendant. The latter application was dismissed by the Commission on 11 December 2002.
The plaintiff then filed an amended notice of appeal in the Commission on 13 December 2002, which, in effect, sought to exclude the defendant from the appeal. A notice of application seeking leave to amend the notice of appeal accordingly was filed on 17 January 2003.
In the meantime, on 19 December 2002, originating process was filed in this Court seeking leave under s 500(2) of the Corporations Act to proceed with the original application against the defendant and to serve notice of the plaintiff's intention to seek leave to amend the notice of appeal to exclude the defendant from the appeal. Orders to that effect were made by Acting Master Chapman on 3 February 2003.
The defendant's application to amend the notice of appeal was dismissed by the Full Bench of the Commission on 7 April 2003 and the appeal otherwise adjourned sine die. So far as is relevant to this application, the Commission found that, although leave had been granted to file the notice of appeal and serve it on the defendant, no leave was granted to the plaintiff to proceed any further with the appeal so far as it related to the defendant. Equally, although leave was granted to file and serve the notice of intention to seek leave to amend the notice of appeal so far as it related to the defendant, no leave was granted to pursue that application any further. The Commission concluded that the application was, in truth, not an application to amend the notice of appeal, but rather an application to strike out the defendant as a party to the appeal. It held that in order to pursue the appeal, and the application to strike out the defendant as a party to the appeal, the plaintiff required leave under s 500(2) of the Act. The Commission also noted that no leave had been obtained in relation to proceeding with the application at first instance so far as it related to the defendant.
In this application, the plaintiff sought orders which would validate the steps taken by him in the Commission proceedings to date and enable him to take such steps as were necessary to exclude the defendant from the application and the appeal, so that he might pursue an appeal in respect of Cool or Cosy Pty Ltd and Ceil Comfort Home Insulation Pty Ltd. In particular, the plaintiff sought orders he have leave nunc pro tunc from 14 March 2002 to proceed with his application in the Commission and to take all steps taken on that application, leave nunc pro tunc from 14 March 2002 to discontinue or strike out the application against the defendant, leave nunc pro tunc from 14 March 2002 to institute and proceed in the appeal against the defendant by filing and serving the notice of appeal on all interested parties, by relisting the appeal for hearing and by arguing the appeal, leave nunc pro tunc to take all steps taken against the defendant in relation to the appeal, and leave nunc pro tunc to discontinue and/or strike out the appeal so far as it relates to the defendant.
Section 500(2) of the Corporations Act requires the leave of the Court to be obtained before any action or other civil proceeding may be proceeded with or commenced against a company in liquidation. The purpose of the provision is to prevent the company in liquidation being subjected to expensive actions that are carried on at the expense of the creditors of the company, perhaps unnecessarily: Executive Director of the Department of Conservation and Land Management v RingFab Environmental Structures Pty Ltd, unreported; Fed Ct (Lee J); 6 November 1997. The Act contemplates that a person who has a claim against the company should submit a proof of debt unless the claimant can show a good reason why this procedure should not be followed: Ogilvie‑Grant v East (1983) 7 ACLR 669 at 672. In determining whether leave should be granted, the Court considers whether the balance of convenience lies in allowing the applicant to proceed by way of action, or whether the applicant should be left to pursue the claim by lodging a proof of debt with the liquidator: Ogilvie‑Grant v East op cit and Executive Director of the Department of Conservation and Land Management op cit. Leave can be granted nunc pro tunc: Ogilvie‑Grant v East op cit, and may be granted subject to such terms as the Court sees fit: s 500(2).
This application has been made on the express basis that leave is sought simply to validate the steps that have been taken in the Commission and to enable the plaintiff to exclude the defendant from the appeal for the future. No other relief, by costs or otherwise, is, or will be, sought against the defendant.
In the circumstances, I was satisfied that the orders sought by the plaintiff should be made. They would not inconvenience, or be at the expense of, other creditors in the liquidation, nor would they give the plaintiff any advantage over those other creditors. They would not affect the orderly winding‑up of the company. Moreover, what the plaintiff sought to achieve could not be achieved in any other practical way.
It is appropriate, in my view, that orders be made to remove any doubt about the validity of the plaintiff's original application and his appeal in the Commission, and to enable the plaintiff to take the necessary steps to exclude the defendant from the appeal. The defendant is now, in all practical senses, simply a formal party to the proceedings, but its presence may prove to be an impediment to the prosecution by the plaintiff of the proceedings in the Commission against the other respondents, Cool or Cosy Pty Ltd and Ceil Comfort Home Insulation Pty Ltd.
It was on that basis I made the orders referred to above.