Milton Harris v BSA Transport

[2014] FWC 7531

[2014] FWC 7531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Milton Harris
v
BSA Transport
(U2014/8559)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 OCTOBER 2014

Application for relief from unfair dismissal - Voluntary Liquidation - application stayed.

[1] On 30 July 2014, Mr Milton Harris made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Milton Harris’ employment was terminated by BSA Transport on 9 July 2014.

[2] Conciliation was listed however, could not take place.

[3] On 8 August 2014, the Fair Work Commission received correspondence advising that BSA Transport was in voluntary liquidation.

[4] On 8 August 2014, SV Partners, Specialist Accountants and Advisors, provided the Commission with a copy of the ASIC Forms 509, 529, 535 and 532, and advised that Mr David Stimpson and Mr Terry van der Velde had been appointed liquidators.

[5] On 24 September 2014, the Commission wrote to Mr Harris and advised him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Harris to s.500(2) of the Corporations Act 2001 (the Corporations Act).

[6] Mr Harris was invited to be heard in relation to the Commission’s position if he disagreed. Mr Harris did not respond to the Commission’s correspondence.

[7] 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.

[8] 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.”

[9] 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.

[10] 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.

[11] As noted earlier, Mr Harris’ application pursuant to s.394 of the Act was filed on 30 July 2014 and the passing of the resolution for winding up occurred on 9 July 2014.

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

[13] Therefore, Mr Harris’ application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

<Price code A, PR556958>

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

 2   [2012] FWA 7275 at [11] - [16]

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