Mr Sebastian Gibbs v Krico Pty Ltd T/A Chameleon Print
[2018] FWC 4240
•19 JULY 2018
| [2018] FWC 4240 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sebastian Gibbs
v
Krico Pty Ltd T/A Chameleon Print
(U2018/5591)
| COMMISSIONER HUNT | BRISBANE, 19 JULY 2018 |
Application for an unfair dismissal remedy - voluntary liquidation – application stayed.
On 30 May 2018 Mr Sebastian Gibbs made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Krico Pty Ltd T/A Chameleon Group (Krico). Mr Gibbs stated that his dismissal occurred on 11 May 2018.
On 6 June 2018 dVTGroup advised the Commission that Mr Riad Tayeh and Ms Suelen McCallum were appointed Joint and Several Liquidators of Krico. Documents attached to the letter indicated that Krico had been placed into voluntary liquidation on 15 May 2018.
Section 500(2) of the Corporations Act 2001 (the Corporations Act) provides:
“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.”
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.”
On 21 June 2018 correspondence was sent to Mr Gibbs advising him that the Commission had formed the preliminary view that his claim for unfair dismissal cannot proceed without leave of the Court. The correspondence set out s.500(2) of the Corporations Act and Mr Gibbs was asked to respond by 28 June 2018 if he had a different view and wished the matter be set down for jurisdiction hearing.
Mr Gibbs requested the matter be set down for jurisdiction hearing and the application was subsequently listed for hearing on 18 July 2018.
Mr Gibbs attended the hearing and made submissions on his own behalf. No appearance was made by the Liquidators on behalf of Krico.
In Smith & Ors v Trollop Silverwood & Beck Pty Ltd[1], the Full Bench held that the Commission is not a ‘Court’ and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.
Further, 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.
After hearing from Mr Gibbs and having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.
Accordingly, Mr Gibbs’ application is stayed until leave of the Court is granted.
COMMISSIONER
<PR609102>
[1] (2003) 142 IR 137.
[2] [2012] FWA 7275 at [11] - [16].
Printed by authority of the Commonwealth Government Printer
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