Ms Dimity Patterson v Agnes Water Tavern Pty Ltd

[2012] FWA 4791

[2012] FWA 4791

FAIR WORK AUSTRALIA

DECISION

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

Ms Dimity Patterson
v
Agnes Water Tavern Pty Ltd
(U2012/7285)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 4 JUNE 2012

Summary: unfair dismissal remedy – liquidator appointed – s.500(2), s.471B and s.440D(1) of the Corporations Act 2001.

[1] This decision concerns an application for an unfair dismissal remedy lodged by Ms Dimity Patterson (“the Applicant”) pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in respect of the alleged harsh, unjust or unreasonable termination of her employment by Agnes Waters Tavern Pty Ltd (“the Company”).

[2] The application was the subject of an unsuccessful conciliation on 11 May 2012. Shortly prior to the scheduled arbitration, the tribunal was advised that AGGS Robson had been appointed as liquidator of the Company. The letter of appointment was dated 20 May 2012. A copy of the letter of appointment was provided to the Applicant.

[3] Although the application was set down for arbitration in the near future, a conference was conducted on 31 May 2012 between the Applicant and a representative of the liquidator.

[4] At that time I explained the relevant provisions of the Corporations Act 2001 (“the Corporations Act”) to the Applicant. In particular, I took the Applicant to s.500 of the Corporations Act, which provides as follows:

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.

[5] Section 500(2) of the Corporations Act concerns any actions or other civil proceedings commenced in any jurisdiction in relation to the Company. The statutory bar to such proceedings under s.500 of the Corporations Act is distinct from those narrower circumstances contemplated in s.471B (or s.440D(1)) of the Corporations Act, which relate only to civil proceedings commenced in a court alone.

[6] Section 471B of the Corporations Act has been subject to consideration by a Full Bench of the Australian Industrial Relations Commission, the predecessor to Fair Work Australia in G.W. Smith, R. Ovcaric, D. Hose and J. Farragher v Trollope Silverwood & Beck Pty Ltd (In liquidation) (“Re: Smith and Ors”). 1

[7] In effect, s.500(2) of the Corporations Act requires that the Applicant in this matter, which concerns a civil proceeding, must seek the leave of the Federal Court before such time as the application under s.394 of the Act may be pursued. If leave is granted by the Federal Court it may be subject to any conditions the court deems fit to apply.

[8] It seems tolerably clear that, by the operation of s.500(2) of the Corporations Act, Parliament has sought to regulate conduct which may prejudice creditors (of whatever status) in relation to the distribution of any dividend. It is not immediately clear, however, on the reasoning of the Full Bench in Re: Smith and Ors 2 why s.471B or s.440D(1) of the Corporations Act does not operate to the same apparent effect, or otherwise.

[9] That observation aside, absent the leave of the Federal Court, and subject to any conditions it might apply, the current application, as a civil proceeding, cannot commence or continue.

[10] There are a number of courses of action available to the Applicant which have been discussed with her. These involve careful consideration by the Applicant of the costs of a particular course of action and an assessment of the availability of any meaningful dividend (which is not an area for the tribunal’s reasonable speculation).

[11] In view of these developments, I will set this matter aside for 28 days within which time I anticipate the Applicant will be in a position to disclose her intentions to me.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C. Griffin for the Respondent.

Ms D. Patterson for herself.

Conference details:

31 May.
Brisbane.
2012.

 1   Giudice J, Ross VP, Whelan C, 17 November 2003 [PR940508].

 2   G.W. Smith, R. Ovcaric, D. Hose and J. Farragher v Trollope Silverwood & Beck Pty Ltd (In liquidation) Giudice J, Ross VP, Whelan C, 17 November 2003 [PR940508].

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