Mr Trent Adams v Josh Virgo T/A Get Laid Tiling Pty Ltd

[2013] FWC 4414

[2013] FWC 4414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Trent Adams
v
Josh Virgo T/A Get Laid Tiling Pty Ltd
(U2013/7010)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 JULY 2013

Application for relief from unfair dismissal - Respondent in Voluntary Liquidation - s.500(2) of the Corporations Act - Application not able to proceed without leave of the Court - Application stayed.

[1] On 26 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Trent Adams (the Applicant). The Applicant’s employment had been terminated by Josh Virgo T/A Get Laid Tiling Pty Ltd (the Respondent) on 6 February 2013.

[2] On 22 March 2013, the Respondent filed their response to the application.

[3] The matter was listed for conciliation on 9 February 2013.

[4] On 9 February 2013, the Respondent’s representative sent correspondence to the Commission advising that the Respondent had been put into liquidation and confirmed that SV Partners had been appointed as liquidators.

[5] Given this information, the Commission contacted Mr Anthony Gagovski of SV Partners who confirmed that they act as liquidator and that they do not wish to participate in conciliation.

[6] On 6 June 2013, the Commission sent correspondence to SV Partners. The correspondence requested that they provide the following information:

(a) whether the company was placed in voluntary liquidation or by court order;

(b) the date of appointment; and

(c) evidence of the resolution of the company or creditors meeting or court order placing the company in liquidation.

[7] On 7 June 2013, SV Partners provided the Commission with the following documents which evidence the winding up of the Respondent and the appointment of liquidators:

a) Resolution of the Board of Directors of Get Laid Tiling Pty Limited (dated 2 April 2013);

b) Letter of Appointment of Liquidators (dated 2 April 2013);

c) Notice of Meeting of Members (dated 2 April 2013); and

d) Minutes of a Meeting of Members of Get Laid Tiling Pty Limited (dated 2 April 2013).

[8] In addition to this, on 18 June 2013, at the request of the Commission, SV Partners provided a copy of ASIC Form 505.

[9] On 21 June 2013, the Commission sent correspondence to the Applicant advising, amongst other things, that pursuant to s.500(2) of the Corporations Act 2001 (Corporations Act) his claim cannot be proceeded with unless he obtained leave of the Court.

[10] 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.

[11] A “court” and “Court” are defined for the purposes of the Corporations Act in s.9, which provides that the meanings are given by s.58AA.

[12] 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.”

[13] 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.

[14] 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.

[15] As noted earlier, the Applicant’s application pursuant to s.394 of the Act was filed on 26 February 2013 and the passing of the resolution for winding up occurred on 2 April 2013.

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

[17] Therefore, I have decided that the Applicant’s application pursuant to s.394 of the Act must be stayed until leave of the Court is granted.

DEPUTY PRESIDENT

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

 2   [2012] FWA 7275 at [11] - [16]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR538594>