FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mills v The Major North Pty Ltd [2025] FedCFamC2G 1531
File number(s): SYG 1178 of 2025 Judgment of: JUDGE ZIPSER Date of judgment: 18 September 2025 Catchwords: PRACTICE AND PROCEDURE – Associated jurisdiction – whether Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to make order under s 453S of Corporations Act Legislation: Corporations Act 2021 (Cth) ss 58AA, 453B, 453S, 455A
Fair Work Act 2009 (Cth) pt 3-1
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 134
Federal Magistrates Court Act 1999 (Cth) s 18
Trade Practices Act 1974 (Cth) ss 51AB, 52, 86
Cases cited: Keene v King [2011] FMCAFam 1117
Ogawa v Federal Magistrate Phipps [2006] FCA 361; 151 FCR 311
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 12 September 2025 Place: Parramatta Applicant: In person Solicitor for the Respondent: Mr C Gamble (MistryFallahi Lawyers & Business Advisors) ORDERS
SYG 1178 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JARRAH MILLS
Applicant
AND: THE MAJOR NORTH PTY LTD
Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the applicant on 11 August 2025 is dismissed.
2.The proceeding is listed for directions at 9:30am on 7 October 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 12 September 2025, I heard an application in a proceeding filed by the applicant, Mr Mills, for leave, pursuant to s 453S(1)(b) of the Corporations Act 2021 (Cth) (‘Corps Act’), for a proceeding commenced by Mr Mills against the respondent in this Court to continue in circumstances where the respondent is under external administration (‘Interlocutory Application’).
For the following reasons, the Interlocutory Application is dismissed.
BACKGROUND
Events up to hearing on 12 September 2025
Between July and December 2024, Mr Mills was employed by the respondent as a chef.
In April 2025, Mr Mills filed an application in this Court, being the Federal Circuit and Family Court of Australia (Division 2), under the Fair Work Act 2009 (Cth) (‘FW Act’) against the respondent. Mr Mills claimed that on 16 December 2024 he was dismissed from employment by the respondent in contravention of Part 3-1 of the FW Act. He claimed compensation of $16,299.20, comprising lost income of $8,299.20 and compensation for emotional distress and reputational harm of $8,000.
On 17 June 2025, the respondent appointed a restructuring practitioner…
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- AGLC
- Mills v The Major North Pty Ltd [2025] FedCFamC2G 1531
- Case
- [2025] FedCFamC2G 1531
- Decision Date
CaseChat Overview and Summary
The Court considered the relevant provisions of the Corporations Act and the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court also referred to the case of Ogawa v Federal Magistrate Phipps [2006] FCA 361; 151 FCR 311, where Finkelstein J considered the jurisdiction of the Federal Magistrates Court to entertain a claim under the Trade Practices Act 1974 (Cth). The Court concluded that it did not have jurisdiction to grant leave under section 453S of the Corporations Act. The Court found that the language of sections 58AA and 453S of the Corporations Act did not permit the Federal Circuit and Family Court of Australia (Division 2) to grant leave under section 453S.
ORDER
The Court dismissed the Interlocutory Application and ordered that the proceeding be listed for directions at 9:30 am on 7 October 2025.
Orders
Orders of the court
SYG 1178 of 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
JARRAH MILLS
Applicant
AND:
THE MAJOR NORTH PTY LTD
Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT ORDERS THAT:
1. The application in a proceeding filed by the applicant on 11 August 2025 is dismissed.
2. The proceeding is listed for directions at 9:30am on 7 October 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
1.
On 12 September 2025, I heard an application in a proceeding filed by the applicant, Mr Mills, for leave, pursuant to s 453S(1)(b) of the Corporations Act 2021 (Cth) (‘Corps Act’), for a proceeding commenced by Mr Mills against the respondent in this Court to continue in circumstances where the respondent is under external administration (‘Interlocutory Application’).
2.
For the following reasons, the Interlocutory Application is dismissed.
BACKGROUND
Events up to hearing on 12 September 2025
3.
Between July and December 2024, Mr Mills was employed by the respondent as a chef.
4.
In April 2025, Mr Mills filed an application in this Court, being the Federal Circuit and Family Court of Australia (Division 2), under the Fair Work Act 2009 (Cth) (‘FW Act’) against the respondent. Mr Mills claimed that on 16 December 2024 he was dismissed from employment by the respondent in contravention of Part 3-1 of the FW Act. He claimed compensation of $16,299.20, comprising lost income of $8,299.20 and compensation for emotional distress and reputational harm of $8,000.
5.
On 17 June 2025, the respondent appointed a restructuring practitioner for the respondent under s 453B of the Corps Act.
6.
By 4 July 2025, Mr Mills was aware that the respondent was under external administration.
7.
On 9 July 2025, Mr Mills notified the restructuring practitioner of his claimed debt of $16,299.20.
8.
On about 14 July 2025, the restructuring practitioner proposed a restructuring plan (see s 455A of the Corps Act) to creditors of the respondent, including Mr Mills. The proposed restructuring plan recorded that the respondent’s debts totalled $314,514.93, including Mr Mills’ debt of $16,299.20, and proposed that creditors would be paid a little over 26 cents in the dollar.
9.
On 1 August 2025, a majority of creditors voted to accept the restructuring plan.
10.
On 5 August 2025, the restructuring practitioner sent a letter to creditors which stated that the restructuring plan (‘Plan’) bound all the respondent’s admissible creditors and:
If you are bound by the Plan, you are not allowed to begin or continue proceedings … against the Companies in relation to claims bound under the Plan without leave of the Court.
11.
On 11 August 2025, Mr Mills filed the Interlocutory Application in which he sought the following order:
The applicant seeks leave pursuant to s 453S(1)(b) of the Corporations Act 2001 (Cth) to continue the proceeding against The Major North Pty Ltd … currently under external administration.
12.
On 15 August 2025, the proceeding was listed for directions before me. I expressed a preliminary view to Mr Mills that, based on the wording of ss 58AA and 453S(1) of the Corps Act (see paragraph 19 below), this Court did not have jurisdiction to grant leave under s 453S. Mr Mills contended that s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’) conferred jurisdiction on this Court to grant leave under s 453S. Section 134 provides:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
Mr Mills contended that this Court could grant leave under s 453S as part of its associated jurisdiction.
13.
On 15 August 2025, I listed the Interlocutory Application for hearing on 12 September 2025, and made procedural orders for the filing and service of evidence and submissions leading up to the hearing.
Hearing on 12 September 2025
14.
At the hearing on 12 September 2025, the parties appeared by video link. Mr Mills was unrepresented. Calvin Gamble, solicitor of MistryFallahi Lawyers & Business Advisors, appeared for the respondent.
15.
I read the affidavit of Sebastian Shearman filed by the respondent on 3 September 2025.
16.
I read written submissions filed by Mr Mills on 25 August 2025 and by the respondent on 3 September 2025.
17.
I heard oral submissions from the parties.
18.
Mr Mills provided a post-hearing written submission by 5 pm on 12 September 2025 concerning:
(a) whether this Court has jurisdiction to grant leave under s 453S of the Corps Act; and
(b) if so, whether this Court should grant leave.
Although that part of the post-hearing submission concerning the topic in sub-paragraph (a) was provided without leave of this Court, I have considered the submission.
CONSIDERATION
Provisions of Corporations Act
19.
Sections 58AA and 453S of the Corps Act relevantly provide:
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 Federal Circuit and Family Court of Australia (Division 1);
(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.
453S Stay of proceedings
(1) During the restructuring of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a) with the restructuring practitioner's written consent; or
(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
Whether this Court has jurisdiction to grant leave under s 453S(1) of Corporations Act
20.
The respondent’s written submission drew my attention to Ogawa v Federal Magistrate Phipps [2006] FCA 361; 151 FCR 311 (‘Ogawa’). In that case, Finkelstein J considered whether the Federal Magistrates Court had jurisdiction to entertain a claim under s 51AB of the Trade Practices Act 1974 (Cth) (‘TP Act’) in circumstances where s 86 of the TP Act, titled “Jurisdiction of courts”, relevantly provided:
(1) Jurisdiction is conferred on the Federal Court in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part.
(1A) Jurisdiction is conferred on the Federal Magistrates Court in any matter arising under Division 1 or 1A of Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.
(2) ...
(3) ...
(4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:
(a) the jurisdiction of the Federal Magistrates Court under subsection (1A); and
(b) the jurisdiction of the several courts of the States and Territories under subsection (2); and
(c) the jurisdiction of the High Court under section 75 of the Constitution.
21.
Section 51AB of the TP Act, which concerned unconscionable conduct, was located in Part IVA, in contrast to the better-known s 52 (concerning misleading conduct) which was contained in Division 1 of Part V.
22.
Finkelstein J stated at [10]-[12]:
[10] I will now explain why the Federal Magistrates Court had no jurisdiction to entertain the claim under s 51AB. By Ch III of the Constitution federal Parliament is given power to create federal courts and to invest them with federal jurisdiction, including jurisdiction which is exclusive of the jurisdiction of other federal courts: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. The jurisdiction which may be conferred on a federal court is in respect of federal subject matters, that is matters of the kind mentioned in ss 75 and 76 of the Constitution. The jurisdiction of a federal court is not, however, confined to matters which are expressly conferred on the court. It will include what is sometimes referred to as “accrued jurisdiction” and, in the case of both the Federal Court and the Federal Magistrates Court, it also includes “associated jurisdiction”: Federal Court of Australia Act 1976 (Cth), s 32;
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr Mills provided a post-hearing written submission by 5 pm on 12 September 2025 concerning:(a)whether this Court has jurisdiction to grant leave under s 453S of the Corps Act; and(b)if so, whether this Court should grant leave.Although that part of the post-hearing submission concerning the topic in sub-paragraph (a) was provided without leave of this Court, I have considered the submission.CONSIDERATIONProvisions of Corporations Act Sections 58AA and 453S of the Corps Act relevantly provide: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 Federal Circuit and Family Court of Australia (Division 1);(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.453S Stay of proceedings(1) During the restructuring of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:(a) with the restructuring practitioner's written consent; or(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.Whether this Court has jurisdiction to grant leave under s 453S(1) of Corporations Act The respondent’s written submission drew my attention to Ogawa v Federal Magistrate Phipps [2006] FCA 361; 151 FCR 311 (‘Ogawa’). In that case, Finkelstein J considered whether the Federal Magistrates Court had jurisdiction to entertain a claim under s 51AB of the Trade Practices Act 1974 (Cth) (‘TP Act’) in circumstances where s 86 of the TP Act, titled “Jurisdiction of courts”, relevantly provided:(1) Jurisdiction is conferred on the Federal Court in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part.(1A) Jurisdiction is conferred on the Federal Magistrates Court in any matter arising under Division 1 or 1A of Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.(2) ...(3) ...(4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:(a) the jurisdiction of the Federal Magistrates Court under subsection (1A); and(b) the jurisdiction of the several courts of the States and Territories under subsection (2); and(c) the jurisdiction of the High Court under section 75 of the Constitution. Section 51AB of the TP Act, which concerned unconscionable conduct, was located in Part IVA, in contrast to the better-known s 52 (concerning misleading conduct) which was contained in Division 1 of Part V.