Rane Labrum v Lexberg Pty Ltd (Receivers and Managers Appointed) T/A Highland Park Family Tavern & Wazza's Cellars

[2014] FWC 2451

[2014] FWC 2451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rane Labrum
v
Lexberg Pty Ltd (Receivers and Managers Appointed) T/A Highland Park Family Tavern & Wazza’s Cellars
(U2012/3353)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 APRIL 2014

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

[1] On 25 May 2012, Mr Rane Labrum made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Labrum’s employment was terminated by Lexberg Pty Ltd (Receivers and Managers Appointed) T/A Highland Park Family Tavern & Wazza’s Cellars (Highland Park) on 15 May 2012.

[2] The matter was the subject of conciliation on 18 June 2012, however it was not resolved. Subsequently directions were issued and the matter was listed for hearing.

[3] On 26 July 2012, the receiver/manager of Highland Park, BDO, filed an objection to the application. The objection sought the dismissal of Mr Labrum’s application on the grounds that as a result of a resolution of creditors the company was placed in voluntary liquidation on 14 February 2012 and relied on s.500 of the Corporations Act 2001 (the Corporations Act).

[4] On 19 February 2013, BDO sent further correspondence to the Commission which reiterated their objection to the application as noted above at [3]. They also provided the Commission with a copy of the ASIC form 505 - Appointment of an external administrator.

[5] On 20 March 2013, an email was forwarded to Mr Labrum advising him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Labrum to section 500(2) of the Corporations Act.

[6] 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.

[7] 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.

[8] 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.

[9] 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] As noted earlier, Mr Labrum’s application pursuant to s.394 of the Act was filed on 25 May 2012 and the passing of the resolution for winding up occurred on 14 February 2012.

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

[12] Therefore, Mr Labrum’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

<Price code A, PR549606>

 1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

 2   [2012] FWA 7275 at [11] - [16]

Printed by authority of the Commonwealth Government Printer