Mills v The Major North Pty Ltd
[2025] FedCFamC2G 1531
•18 September 2025
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 for the respondent under s 453B of the Corps Act.
By 4 July 2025, Mr Mills was aware that the respondent was under external administration.
On 9 July 2025, Mr Mills notified the restructuring practitioner of his claimed debt of $16,299.20.
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.
On 1 August 2025, a majority of creditors voted to accept the restructuring plan.
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.
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.
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.
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
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.
I read the affidavit of Sebastian Shearman filed by the respondent on 3 September 2025.
I read written submissions filed by Mr Mills on 25 August 2025 and by the respondent on 3 September 2025.
I heard oral submissions from the parties.
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
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.
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; Federal Magistrates Court Act 1999 (Cth), s 18. As to the distinction between “accrued jurisdiction” and “associated jurisdiction” see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261…
[11] Immediately before the establishment of the Federal Magistrates Court, the Federal Court had jurisdiction to deal with any matter arising under the Trade Practices Act. The jurisdiction was conferred by s 86(1) of the Trade Practices Act. When the Federal Magistrates Court was established s 86 was amended to give that court jurisdiction “in any matter arising under Division 1 or 1A of Part V in respect of which a civil proceeding is initiated by a person other than the Minister or the Commission.”: see s 86(1A). Thus the Federal Magistrates Court is able to deal with claims based on a contravention of s 52, which is found in Pt V, Div 1, but not for a contravention of s 51AB, which is located in Pt VA.
[12] It is now necessary to notice s 86AA(4). This sub-section relevantly provides that the jurisdiction of the Federal Court conferred by s 86(1) is “exclusive of the jurisdiction of any other court other than: (a) the jurisdiction of the Federal Magistrates Court under subsection (1A).” I think the intent of this provision is clear. Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that matter has begun in the Federal Court. Moreover, it would subvert Parliament’s intention if one were to accept the University’s contention that s 18 of the Federal Magistrates Court Act (the “associated jurisdiction” provision) has the effect of giving to the Federal Magistrates Court jurisdiction over a federal claim that is within the exclusive jurisdiction of the Federal Court. In my view whatever claims may be picked up as part of the Federal Magistrates Court’s associated jurisdiction they do not include claims that are within the exclusive jurisdiction of another federal court.
Since Mr Mills relies on the associated jurisdiction of this Court conferred by s 134 of the FCFCOA Act, the analysis of Finkelstein J, which included consideration of the associated jurisdiction of the Federal Magistrates Court conferred by s 18 of the Federal Magistrates Court Act 1999 (Cth) Act, is significant.
At the hearing in this Court, I asked Mr Mills why the analysis in Ogawa did not apply to the present matter. Mr Mills replied that s 86(4) of the TP Act stated that the jurisdiction of the Federal Court was “exclusive of the jurisdiction of any other court”, and s 58AA of the Corps Act does not contain the same language.
There is no magic in words. While I accept that s 58AA of the Corps Act does not use the same language as s 86(4) of the TP Act, in my opinion, the intent of ss 58AA and 453S is clear. It is clear from:
(a)the distinction in meaning between the terms “court” and “Court” in s 58AA(1);
(b)the description in s 58AA(2) of use of the expression “the Court” as “a clear expression of a contrary intention”; and
(c)the different use of the terms “court” and “Court” in s 453S(1),
that Parliament intends that only the courts specified in the definition of “Court” in s 58AA(1) may provide leave under s 453S(1). See also Keene v King [2011] FMCAFam 1117 at [13]-[14] where the reasoning in Ogawa was applied in a statutory context which did not use language similar to the language in s 86(4) of the TP Act.
Although the term “Court” in s 58AA(1) is defined to include the Federal Circuit and Family Court of Australia (Division 1), the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) are different courts – see ss 8 to 10 of the FCFCOA Act.
Further, as in Ogawa at [12], I consider that it would subvert Parliament’s intention if one were to accept Mr Mills’ contention that the associated jurisdiction provision in s 134 of the FCFCOA Act has the effect of giving to this Court jurisdiction over a claim that is within the exclusive jurisdiction of the courts specified in the definition of “Court” in s 58AA(1).
Mr Mills contends in paragraph 4 of his post-hearing submission that “the s 453S stay under the Corporations Act … is an incidental procedural issue.” I disagree that an application for leave under s 453S(1) is an “incidental procedural issue”. If a court was to grant leave under s 453S(1), to a creditor of a company the subject of an approved restructuring plan, this would have a significant impact on the company and other creditors of the company. Further, that s 453S(1) is drafted with the effect that “a proceeding in a court” (that is “any court” in Australia – see s 58AA(1)) cannot proceed without “leave of the Court” (that is, one of the four courts specified in the definition of “Court” in s 58AA(1)) indicates that an application under s 453S(1) to “the Court” for leave is not an “incidental procedural issue”.
Mr Mills contends in paragraph 7 of his post-hearing submission that “refusing jurisdiction would create an unfair outcome” because “it would mean that … an employee’s Fair Work claim already filed in Division 2 would be paralysed”. I disagree that Mr Mills’ claim is paralysed. It is open to Mr Mills to apply for leave under s 453S to one of the courts specified in the definition of “Court” in s 58AA. Mr Mills adds in paragraph 8 that “forcing me to seek relief in another forum … would create duplication, extra cost and delay”. While I acknowledge these potential impacts on Mr Mills, they do not affect the proper construction of the relevant statutory provisions.
Since this Court does not have jurisdiction to grant leave under s 453S of the Corps Act, the Interlocutory Application must be dismissed.
COSTS AND NEXT STEPS
At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Gamble accepted that the restriction on costs orders referred to in s 570 of the FW Act applied to the Interlocutory Application, but contended, with reference to the exceptions in s 570(2), that either Mr Mills “instituted the proceedings vexatiously or without reasonable cause” or Mr Mills’ “unreasonable act or omission caused the [respondent] to incur the costs”. I am not persuaded that Mr Mills instituted the proceeding in this Court vexatiously or without reasonable cause. I am also not persuaded that Mr Mills’ conduct in relation to the Interlocutory Application was unreasonable. His attempt to rely on s 134 of the FCFCOA Act was not unreasonable, although it may have been prudent for him to re-evaluate prospects of success once the respondent served its written submission which identified Ogawa. It is also relevant that Mr Mills has not retained a lawyer in this proceeding. For these reasons, I will make no order concerning costs of the Interlocutory Application.
At the conclusion of the hearing, I stated that, on publishing a judgment, I would list the matter for directions a few weeks later. This will give Mr Mills time to consider his position.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 18 September 2025
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