Phillip Robinson v Solomon Mineral & Metal Pty Ltd

[2016] FWC 6156

[2016] FWC 6156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Robinson
v
Solomon Mineral & Metal Pty Ltd
(U2016/5298)

DEPUTY PRESIDENT DEAN SYDNEY, 30 AUGUST 2016

Application for relief from unfair dismissal – voluntary liquidation – application stayed.

[1] On 11 March 2016, Mr Phillip Robinson (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant’s employment was terminated by Solomon Mineral and Metal Pty Ltd (the Respondent) on 21 February 2016.

[2] The matter was listed for hearing on 30 August 2016.

[3] On 29 August 2016 correspondence was received from Talbots Corporate Recovery Services Pty Limited (Talbots) advising that Mr Michael Hird of Talbots had been appointed Liquidator of the Respondent on 26 August 2016.

[4] Attached to the correspondence was an ASIC Form 505 confirming the appointment of Mr Hird as the registered liquidator. The correspondence also noted s500(2) of the Corporations Act 2001 (the Corporations Act).

[5] 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.

[6] 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.”

[7] Having regard to this provision and of the Full Bench decision of Smith & Ors v Trollop Silverwood & Beck Pty Ltd    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.

[8] 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.

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

[10] Therefore, this application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].

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