Mr Christopher Marshall v Challenge Australian Dairy Pty Ltd (Receivers and Managers Appointed)
[2011] FWA 2567
•2 MAY 2011
[2011] FWA 2567 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christopher Marshall
v
Challenge Australian Dairy Pty Ltd (Receivers and Managers Appointed)
(U2010/3159)
COMMISSIONER WILLIAMS | PERTH, 2 MAY 2011 |
Jurisdictional objection.
[1] This matter involves an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) made by Mr Christopher Marshall (the Applicant). The respondent to the application is Challenge Australian Dairy Pty Ltd (the Respondent).
[2] It is not necessary to set out the full history of this matter suffice to say that there has been ongoing correspondence between the tribunal and the liquidators of the Respondent, PPB Advisory, and the Applicant.
[3] In November 2010 the liquidators asserted that the tribunal was without jurisdiction to deal with this matter on the basis that section 440 D of the Corporations Act 2001 (Cth) was applicable. Whilst I accept that section 440 D of the Corporations Act 2001 was applicable around this time the liquidators assertion that the effect of this was that the tribunal was without jurisdiction was wrong. 1
[4] Following further correspondence this matter was listed to resolve the jurisdictional issue and at that time I granted permission for Mr Pearce of McKenzie Moncrief Lawyers to appear on behalf of the liquidators of the respondent. There was no appearance on behalf of the Respondent as such nor the Receivers and Managers.
[5] Mr Pearce provided helpful submissions that resolved the previously incorrect position adopted by the liquidators in this matter. Importantly Mr Pearce also advised the tribunal, and has subsequently provided copies of the appropriate materials to support the submission, that following a resolution of creditors the Respondent in January 2011 has voluntarily proceeded into liquidation.
[6] Mr Marshall participated in that hearing by telephone and has been provided with a copy of all the materials provided by Mr Pearce and a copy of the transcript and was invited to provide any submissions he wished in reply however after a number of follow-up contacts by my staff it seems Mr Marshall has nothing further he wishes to put before the tribunal on these points.
[7] Because of the change in circumstances from January 2011 Mr Pearce submits that section 440D of the Corporations Act 2001 has no further relevance to the Respondent. However his submission is that there are two similar sections which do apply to companies being wound up: section 471B, in relation to companies being wound up in insolvency or by the Court, and section 500, in relation to companies being wound up voluntarily. Based on these submissions and the materials supplied I accept that the respondent is subject to a voluntary winding up.
[8] Consequently in this case it is section 500 of the Corporations Act 2001 which is the relevant section. This section is set out below.
SECT 500
Execution and civil proceedings
(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.
(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.
(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property or books in his, her or its hands to which the company is prima facie entitled.
[9] Mr Pearce submitted that Section 500(2) has a wider application than sections 471B and 440D. The latter provisions apply to “a proceeding in a court”, whereas the former applies to any “action or other civil proceeding”. This distinction was noted in Watervale Pty Ltd v Abey [2005] TASSC 67 a decision involving a review of a decision that had been made in an unfair dismissal matter before the then Tasmanian Industrial Relations Commission. Following the Commissioner issuing a decision in favour of the dismissed employee an application was filed in the Supreme Court of Tasmania by the liquidator seeking to have the Commissioner's decision reviewed under the Judicial Review Act 2000 (Tas).
[10] In his review decision Crawford J considered the effect of s. 500 of the Corporations Act 2001, as follows:
“13 Part 5.4B of the Corporations Act deals with the winding up of companies in insolvency or by a court. In Div1A, which deals with the effect of such a winding up, s471B applies to the beginning or proceeding with a proceeding in a court against the company in liquidation in these terms (again with my italics):
"While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:
(a) a proceeding in a court against the company or in relation to property of the company; or
(b) enforcement process in relation to such property;
except with the leave of the Court and in accordance with such terms (if any) as the Court imposes."
14 As with s440D(1), par(a) only applies to "a proceeding in a court" and possibly does not extend to proceedings before the Commission. However, the section does not apply to this case because the applicant, Watervale Pty Ltd, was not being wound up in insolvency or by the court.
15 The applicant relies on s500(2). Its provisions are set out earlier in these reasons. The section is in Pt5.5 of the Corporations Act, which deals with voluntary windings up, such as the one applying to the applicant. Unlike ss440D(1) and 471B, s500(2) does not by its terms concern only civil proceedings in a court. It appears to extend to civil proceedings generally, whether in a court or not. I have no hesitation in concluding that the matter before the Commissioner amounted to a civil proceeding.
16 Almost no assistance has been gained by me from a search for authorities. However, I note that in Rochford v Textile Clothing & Footwear Union of NSW (1998) 30 ACSR 38 at 55, Austin J, of the Supreme Court of New South Wales, held that for the purposes of s440D, the New South Wales Industrial Relations Commission, when hearing an industrial dispute concerning an allegation of unfair dismissal, as is basically the case here, was a court and was dealing with "a proceeding in a court". That conclusion is contrary to what the Commissioner held in Tata's case but, of course, the different legislation might justify a different conclusion.
17 Because the terms of s500(2) are different from those of ss440D(1) and 471B, particularly because they do not require the relevant proceedings to be in a court, I conclude that they may have a different application. In any event, because s500(2) does not in its terms require the relevant proceedings to be in a court, I hold that it does not as a matter of law require it. I add that I have come to that conclusion after some hesitation and without the assistance of argument in support of a different conclusion.
18 Therefore, I hold that the Commissioner had no jurisdiction to hear and determine Ms Manning's application without a Court, as that word is defined in the Corporations Act, s58AA, having first given leave under s500(2). There will be an order quashing the order of the first respondent made on 9 March 2005 in favour of Ms Manning against the applicant. If Ms Manning wishes to pursue her application to the Commission it will first be necessary for her to obtain the leave of a Court under s500(2) to enable her to do so.”
[11] In this jurisdiction a helpful analysis of this question is provided in the decision of Commissioner McKenna in the matter of Julie Frances Lawler v ABC Developmental Learning Centres Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) 2. I respectfully agree with Commissioner McKenna's conclusions regarding the effect of section 500 of the Corporations Act 2001 on applications such as this.
[12] My conclusion in this case then is that this matter before me is an action or other civil proceeding within the meaning of section 500 of the Corporations Act 2001. Consequently, this matter can be proceeded with only by leave of a Court (within the meaning given in section 58A of that Act) and subject to any such terms as the Court imposes. I accept that Fair Work Australia is not a Court within the meaning of section 58A of the Corporations Act 2001 and so Fair Work Australia has no power to grant leave for this matter to proceed.
[13] The practical effect of this for the Applicant Mr Marshall is that his application can only proceed if he is successful in obtaining the leave of a Court to allow him to continue. Consequently this application is adjourned indefinitely. There will be no further proceedings unless Fair Work Australia receives confirmation in writing that a Court has granted Mr Marshall leave for this matter to proceed.
COMMISSIONER
Appearances:
Mr C Marshall, the Applicant, on behalf of the Applicant
Mr Pearce of McKenzie Moncrief Lawyers, on behalf of PPB Advisory
Hearing details:
Perth.
2011:
March 16.
1 Transcript Pn 342 to 36
2 2010 FWA 7679 at paragraphs [16] to [22].
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