Philip Boyle v Northampton Pty Ltd (In Liquidation)
[2025] FWC 1973
•10 JULY 2025
| [2025] FWC 1973 |
| FAIR WORK COMMISSION |
| DECISION AND ORDER |
Fair Work Act 2009
s.394—Unfair dismissal
Philip Boyle
v
Northampton Pty Ltd (In Liquidation)
(U2025/379)
| DEPUTY PRESIDENT EASTON | SYDNEY, 10 JULY 2025 |
Application for an unfair dismissal remedy – dismissal under s.587 for want of prosecution.
On 11 January 2025, Mr Philip Boyle made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) against Northampton Pty Ltd.
Northhampton Pty Ltd was placed into liquidation on 5 February 2025.
Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:
“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.”
On 24 March 2025 correspondence was sent to Mr Boyle about these matters and asked Mr Boyle to indicate:
“that you have made an application to a Court for leave/permission to continue your claim; OR
that you want to discontinue your unfair dismissal application.”
Mr Boyle did not respond. Emails were sent to Mr Boyle on 11 April 2025 and 17 April 2025 asking Mr Boyle to indicate whether he intends pursuing his Unfair Dismissal claim and the basis upon which he says it can proceed.
On 16 April 2025 Mr Boyle responded expressing his disappointment with the Commission’s email but not providing a response to the question posed regarding the future of his application.
If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).
Section 587 of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
To date Mr Boyle has not provided an adequate response regarding the continuation of his application or taken any steps to pursue his claim.
Mr Boyle has been on notice of a significant obstacle that most likely prevents him from continuing his case – being the operation s.500(2) of the Corporations Act 2001 (Cth). Instead of discontinuing his application or mounting an argument as to how his claim can lawfully continue, Mr Boyle has not engaged any further with the Commission.
In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Boyle’s application for want of prosecution, and make the following order:
The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Philip Boyle on 11 January 2025 is dismissed.
DEPUTY PRESIDENT
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