Patricia Dobe v NextTech Institute of Australia Pty Ltd (Formerly New Horizons Learning Centres Holdings Pty Ltd)

[2020] FWC 1638

[2020] FWC 1638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Patricia Dobe
v
NextTech Institute of Australia Pty Ltd (Formerly New Horizons Learning Centres Holdings Pty Ltd)
(C2019/7923)

COMMISSIONER HUNT BRISBANE, 30 MARCH 2020

Application to deal with other contraventions dispute – respondent placed into creditors’ voluntary liquidation – application stayed.

[1] On 24 December 2019, Ms Patricia Dobe (the Applicant) made an application pursuant to s.372 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute under Part 3-1 of the Act. The Applicant alleges that NextTech Institute of Australia Pty Ltd (the Respondent) contravened ss.340 and 351 of the Act.

[2] On 13 February 2020, the Respondent filed a response to the Applicant’s application. In its response, the Respondent advised that it was placed into creditors’ voluntary liquidation on 9 January 2020.

[3] On 14 February 2020, correspondence was sent to the parties advising that if the Respondent had, in fact, been placed into creditors’ voluntary liquidation, I had formed a preliminary view that this application could not proceed unless the Applicant obtains leave of the Court because of the operation of s.500(2) of the Corporations Act 2001 (the Corporations Act). The Respondent was asked to produce to my chambers materials related to the event of liquidation and, on receipt of those materials, the Applicant was asked to advise whether they disagreed with my preliminary view and wished for the matter to be set down for a jurisdictional hearing.

[4] Section 500(2) of 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.”

[5] 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.”

[6] On 18 February 2020, the Respondent provided documents to my chambers which indicated that on 9 January 2020 joint and several liquidators of creditors’ voluntary liquidation were appointed for the Respondent by a resolution of the Respondent’s member on 9 January 2020.

[7] On 25 March 2020, the Applicant advised that she does not take issue with my preliminary view that this application could not proceed without leave of the Court.

[8] 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.

[9] 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.

[10] 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.

[11] Accordingly, the Applicant’s application is stayed until leave of the Court is granted.

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].