Patrick Dalton v Complete Roofing Warehouse Pty Ltd

[2023] FWC 969

[2023] FWC 969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Patrick Dalton
v

Complete Roofing Warehouse Pty Ltd

(U2023/1651)

COMMISSIONER P RYAN SYDNEY, 24 APRIL 2023

Application for an unfair dismissal remedy

1. On 1 March 2023, Mr Patrick Dalton (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Complete Roofing Warehouse Pty Ltd (Respondent).

1. The matter was listed for a conciliation conference on 28 March 2023. The conciliation conference did not proceed due to the Respondent raising a jurisdictional objection.

1. The matter was subsequently allocated to my chambers. During a case management and directions hearing on 12 April 2023, the Applicant advised that the Respondent had been placed in external administration. The Applicant provided the details of the external administrator later that day.

1. The matter was then listed for case management and directions on 21 April 2023.

1. On 20 April 2023, the Commission received correspondence from Mr Daniel Quinn, Sole Liquidator, at SV Partners Insolvency (NSW) Pty Ltd. Mr Quinn advised that the Respondent has been placed in Liquidation, that he has been appointed as sole liquidator, and referred to s.500(2) of the Corporations Act 2001 (Corporations Act). Mr Quinn also provided a copy of the Australian Securities & Investments Commission Form 505, confirming his appointment as liquidator.

1. Section 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.”

1. Section 58AA of the Corporations Act provides the following definition in relation to the 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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.”

1. It is clear that the Commission is not a “Court”, and it cannot grant leave as required by s.500(2) of the Corporations Act.[1] It is also clearly established that an unfair dismissal application falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.[2]

1. During the case management and directions hearing on 21 April 2023, the Applicant sought an opportunity to seek the leave of the Court.

1. Accordingly, the matter will be stayed to afford the Applicant an opportunity to seek the leave of the Court.

COMMISSIONER

[1] Smith v Trollope Silverwood & Beck Pty Ltd (2003) 142 IR 137.

[2] Silalahi v CMI Industrial (Forge) [2012] FWA 7275 at [11]-[16].

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