Paula Stephens v Global Intellectual Group

[2016] FWC 2591

[2016] FWC 2591 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paula Stephens
v
Global Intellectual Group
(U2015/15044)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 APRIL 2016

Application for relief from unfair dismissal - voluntary liquidation - application stayed

[1] On 16 November 2016, Ms Paula Stephens made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Stephens’ employment was notified of her termination from Global Intellectual Group on 30 October 2013.

[2] On 20 November 2016, Global Intellectual Group filed their response to the application.

[3] The matter was subject of conciliation however, it was not resolved. Directions were issued and the matter was listed for hearing.

[4] On 11 February 2016, the Commission received advice from Ms Stephens advising that Global Intellectual Group was in voluntary liquidation. This advice was confirmed by a contact of the company.

[5] The Commission performed a check on the ASIC liquidation notices database which confirmed that on 15 March 2016 at a special meeting of the company’s creditors, a resolution was passed for the company to be would up voluntarily.

[6] On 6 April 2016, the Commission wrote to Ms Stephens and advised her that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Ms Stephens to s.500(2) of the Corporations Act 2001. Further, Ms Stephens was invited to be heard in relation to the Commission’s position if she disagreed. Ms Stephens did not respond to the Commission’s correspondence.

[7] 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.”

[8] 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 9.7, 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.”

[9] 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.

[10] 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.

[11] As noted earlier, Ms Stephens’ application pursuant to s.394 of the Act was filed on 16 November 2016 and the passing of the resolution for winding up occurred on 15 March 2016.

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

[13] Therefore, Ms Stephens’ application under s.394 of the Act is 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]

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