Rezkalla v The Trustee for P & D Lazarovski Family Trust
[2022] FedCFamC2G 562
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rezkalla v The Trustee for P & D Lazarovski Family Trust [2022] FedCFamC2G 562
File number(s): MLG 3062 of 2021 Judgment of: JUDGE O'SULLIVAN Date of judgment: 12 July 2022 Catchwords: INDUSTRIAL LAW – application and statement of claim – allegations of contraventions of the Fair Work Act 2009 (Cth) – application names four respondents – first respondent deregistered – application in a proceeding by fourth respondent for summary dismissal – appropriate orders. Legislation: Corporations Act 2001 (Cth), s.58AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r.13.13
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.46
Federal Court of Australia Act 1999 (Cth), s.31A
Fair Work Act 2009 (Cth), ss.340, 550, 570
Cases cited: Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors [2001] FCA 187
Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Hu [2019] FCAFC 133
Fair Work Ombudsman v Proplas Industries Pty Ltd & AnorandFair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506
Fair Work Ombudsman v South Jin Pty Ltd and Ors [2013] FCA 1057
Fancourt v Mercantile Credits Ltd (1083) 154 CLR 87
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Ors [2008] 167 FCR 372
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Riva Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188
Spencer v The Commonwealth [2010] HCA 28
Torpia v Empire Printing (Australia) Pty Ltd [2009] FMCA 853
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: On the papers Place: Melbourne (via Microsoft Teams) Appearance for the Applicant: In person (via video link) Appearance for the First Respondent: Did not participate Appearance for the Second Respondent: In person (via telephone link) Appearance for the Third Respondent: In person (via video link) Appearance for the Fourth Respondent: In person (via video link) ORDERS
MLG 3062 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANAL REZKALLA
Applicant
AND: THE TRUSTEE FOR P & D LAZAROSKI FAMILY TRUST
First Respondent
AMANDA SPOTO
Second Respondent
DAPHNE CHRISTOU
Third Respondent
HAYLEY JAKINS
Fourth Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
12 JULY 2022
THE COURT ORDERS THAT:
1.Pursuant to s.169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the matter be referred to a Registrar of the Court for mediation in accordance with r.45.13B of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The application in a proceeding filed 11 April 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 26 November 2021, Manal Rezkalla (‘the applicant’) commenced proceedings against the Trustee for P & D Lazarovski Family Trust (‘the first respondent’), Amanda Spoto (‘the second respondent’), Daphne Christou (‘the third respondent’) and Hayley Jakins (‘the fourth respondent’) (collectively ‘the respondents’).
The applicant said that she worked for the first respondent (and with the other respondents) for a period of a few months in 2021 at a child care business in Hillside that was operated by the first respondent (Hillside Cottage Early Learning and Kindergarten).
BACKGROUND
By her statement of claim filed on 26 November 2021 the applicant sought:
(a)declarations that the respondents had engaged in adverse action and contravened s.340 of the Fair Work Act 2009 (Cth) (‘the FW Act’);
(b)declarations that the second, third and fourth respondents were involved in the contraventions pursuant to s.550 of the FW Act; and
(c)compensation and pecuniary penalties.
In the statement of claim the applicant alleged, inter alia, that:
(1)in or around the third week of employment she made a complaint to Ms Debbie Lazaroveski, (the owner of the child care business) that the second respondent had insisted that she had to complete tasks that the applicant considered to be beyond her role of food supervision.[1]
(2)in or around the fourth week of her employment she made a complaint to the second respondent and the owner in relation to the verbal and physical harassment that she alleged took place against her by the third and fourth respondent which she claimed amounted to a contravention of s.340 and s.550 of the FW Act respectively.[2]
(3)on 9 September 2021 she received an email from the second respondent that included a notice of termination of employment.
(4)she was dismissed and that the adverse action was taken against her as a result of her previous complaints, her absence due to sick leave and the discrimination she alleged she had experienced by the second, third and fourth respondents during her employment, due to her “race and national extraction”.[3]
[1] see Statement of Claim (‘SoC’) at paragraphs [32]-[34] (inclusive).
[2] see SoC at paragraphs [35]-[37] (inclusive).
[3] see SoC at paragraphs [47]-[49] (inclusive). See also paragraphs [39]-[43] (inclusive).
ORDERS MADE AT DIRECTIONS HEARINGS
When the application and the statement of claim were filed, the proceedings were given a first return date of 21 December 2021. In an affidavit of service filed on 20 December 2021, the applicant deposed that she had served the respondents at the address of the childcare centre. Later the same day the second and fourth respondents each filed a Notice for Address of Service.
The proceedings came before Registrar Allaway on 21 December 2021 and (whilst there is no record of who appeared) the following orders were made:
1.The proceedings be listed for case management hearing before a judge on a date to be fixed.
2.The Applicant is to serve a copy of these Orders on the First Respondent, The Trustee for P&D Lazarovski Family Trust.
The applicant filed another affidavit of service on 10 February 2022 deposing that the application, the statement of claim and the orders of 21 December 2021 had been served (by post) on the first respondent at an address in South Morang.
When the matter came before this Court on 16 February 2022, there was no appearance by or on behalf of the first and third respondents. The following orders were made:
1. Time be extended for a further 28 days for the applicant to
(a)serve the first respondent (in accordance with the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (‘the Rules’) with the application filed on the 26 November 2021, the Statement of Claim filed on the 26 November 2021, the orders of the 21 December 2021 and these orders; and
(b)serve the third respondent in accordance with the Rules with the application filed on the 26 November 2021, the Statement of Claim filed on the 26 November 2021, the orders of the 21 December 2021 and these orders; and
(c)file and serve an affidavit of service evidencing compliance with orders (a) and (b).
2.In the event that the applicant fails to comply with the orders (a), (b) and (c) the proceedings as against the first and third respondent may be struck out for default in accordance with Rule 13.05 of the Rules.
3.The second and the fourth respondent have 28 days after compliance with order 1 to file and serve a response and any affidavit that they may wish to rely on.
4.The matter be adjourned to 13 May 2022 commencing at 10:00 am for directions hearing at the Federal Circuit and Family Court of Australia via Microsoft Teams.
The applicant filed a third affidavit of service on 17 March 2022 deposing that the application, statement of claim and the orders of 21 December 2021 and 16 February 2022 had been served by post as well as delivered to (what she said was) the registered office of the first respondent on 12 March 2022. The applicant attached to her affidavit an ASIC business name extract dated 12 January 2022 for the child care business.
The applicant’s efforts on 12 March 2022 resulted in the Registry receiving a copy of the following email from Mr Lazarovksi on 21 April 2022 to the applicant (at the same email address she used in her initiating application) which (omitting formalities) said:
I write this email to assist you as a self-represented litigant, and the Court.
On 12 March 2022 you served on me a sealed envelope containing documents in the above proceeding, including:
•an order dated 13 May 2022 (erroneously I expect);
•an order dated 21 December 2021;
•a document titled "Application - Fair Work Division";
•a document titled "Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection";
•a document titled "Certificate under section 368"; and
•a document titled "Statement of Claim"
I have reviewed these documents in detail and sought legal advice.
While you have purported to serve these documents on me, I am not a party named in these proceedings.
Additionally, I am not the Trustee for the P & D Lazarovski Family Trust.
The Trustee for the P & D Lazarovski Family Trust was Lazarovski Investments Pty Ltd.
From December 2004 the director of Lazarovski Investments Pty Ltd was my wife Dobrinka Lazarovska.
My wife passed away on 1 December 2021.
Upon the deterioration of my wife's health I became a director of Lazarovski Investment Pty Ltd with a view to closing down the business operated by the trust.
Following the sale of the business Lazarovski Investments Pty Ltd was deregistered on 17 February 2022.
I note that the proceeds of sale from the business were wholly applied against the debts of the business. After the payment of debts there were no surplus funds to be distributed to any trust beneficiary.
In circumstances where Lazarovski Investments Pty Ltd, the Trustee for the P & D Lazarovski Family Trust, was deregistered and I am not a named party to the proceedings I do not intend on appearing at the 13 May 2022 Hearing.” (emphasis added)
On 11 April 2022, the fourth respondent (who had appeared at the February directions hearing) filed, along with her response and affidavit, an application in a proceeding seeking orders under Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’) that the application filed 26 November 2021 to be summarily dismissed against her and there be an order for costs under s.570(2) of the FW Act.
On 10 May 2022, a fourth affidavit of service was filed by the applicant naming the person served as “Daphne Spoto”. This may have been an attempt to record service on the third respondent. In any event, it became clear that the proceedings had been bought to the attention of the third respondent as she then filed an affidavit on 12 May 2022 in which she acknowledged receiving the required documents from the applicant. There was also an affidavit filed on behalf of the third respondent at the same time by Ms Pang (who appears to operate a childcare business at the site previously run by the first respondent). Whilst that affidavit queried whether the applicant had complied with the above orders in time, it was clear the applicant had been able to bring the proceedings to the attention of the third respondent.
When the matter returned to Court on 13 May 2022, the applicant and the fourth respondent appeared electronically. There had been email correspondence received by Chambers sent on behalf of the second respondent seeking an adjournment on medical grounds. The parties had been reminded that unless it was by consent of all parties, adjournment applications could not be made via email and (not only did a proper application for an adjournment have to be filed and served) if a party did not attend, orders could be made in their absence. Notwithstanding this reminder, the second respondent sent an email (attaching a medical report from Dr Grace Hayes dated 5 May 2022) saying that she was unable to attend due to a medical condition.
At the beginning of the directions hearing the second respondent’s partner sought to appear on her behalf to explain that she was unwell. Given his status it was explained to him that the Court could not take into account what he wanted to say but confirmed the above information had been received. By the time this had been explained to the second respondent’s partner the third respondent had also been able make arrangements to attend the directions hearing electronically.
After the above background was rehearsed, and the email from Mr Lazarovski bought to everyone’s attention, the following orders were made:
THE COURT NOTES THAT:
1.There is no evidence that the applicant has complied with order 1(b) of the orders made on 16 February 2022 and no evidence that the applicant has properly served the third respondent, Ms Daphne Christou.
2.The fourth respondent, Ms Hayley Jakins has filed an application in a proceeding on 11 April 2022 seeking an order pursuant to Rule 13.13 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (‘the Rules’).
3.The Trustee For P & D Lazarovski Family Trust (‘the first respondent’) was Lazarovski Investments Pty Ltd (ACN 112 298 352) which was deregistered under the Corporations Act 2001 (Cth) on 17 February 2022.
4.By letter dated 5 May 2022, Dr Grace Hayes certified that it was “not in the interests of (the second respondent, Ms Amanda Spoto) to be providing testimony at this time.”
THE COURT ORDERS THAT:
5.By 3:00pm on 27 May 2022, the applicant is to file with the Court and serve on the other parties, along with a copy of these orders, written submissions addressing the following:
(a)why, given order 1 above, an order should not be made under Rules 13.04(1)(a),(b) and/or (e), 13.05 of the Rules dismissing the proceedings against and removing the third respondent as a party;
(b)why, given order 2 above, an order should not be made under Rule 13.13(1)(a) of the Rules dismissing the proceedings against and removing the fourth respondent as a party;
(c)why, given order 3 above, the proceedings against the first respondent should not be stayed under s.500 of the Corporations Act 2001 (Cth);
6.The applicant’s submissions on matters in, and on the questions raised by, order 5 be thereafter considered on the papers in Chambers.
7.Time be extended to 4:00pm on 10 June 2022, for the second respondent to comply with order 3 of the orders made on 16 February 2022.
8.The matter be otherwise adjourned for further directions on 12 July 2022 commencing at 12:00noon via Microsoft Teams.
DOCUMENTS FILED SINCE 13 MAY 2022
The applicant filed submissions on 27 May 2022 which were as follows:
1.In response to order 5 of the court orders made on 13 May 2022 (the orders), the applicant respectfully submit the following:
(a) Given that order 1 of the orders provides that,
"there is no evidence that the applicant has complied with order l(b) of the orders made on 16 February 2022 and no evidence that the applicant has properly served the third respondent, Ms Daphne Christou"
The Applicant respectfully submit that she complied with the orders and properly served the third respondent with the application and the statement of claim and the orders of 21 December 2021 and the orders of 16 February 2022 (the documents). The evidence is that the third respondent made appearance at the hearing on 13 May 2022. The applicant understands that the service was made out of time and the reason for this is that the third respondent was able to hide herself while working in the same workplace and knowing about the proceedings from the other respondents who are workplace mates of herself. The applicant lodged an affidavit of service on 10/05/2022 in the court electronically. The applicant is kindly requesting exemption in regard to the above delay in effecting the service as it was for reasons out of her control, she simply could not locate the third respondent and when she found her, she properly served her with the documents.
(b)The applicant respectfully submit that the fourth respondent should not be removed from the proceeding as she Involved herself In a contravention and should be treated in same way as actual contravention under s5500 of the Fair Work Act 2009 (the Act), and evidence Will be given in trial in support of the applicant's allegations.
(c)The proceeding against the first respondent should continue. This proceeding started in the Federal Circuit and Family Court on 29 November 2021, a long time before the alleged date of the deregistration of the first respondent. We understand that there is information provided to the court by a third party regarding the deregistration, but we respectfully submit that the applicant was not copied with this information. The applicant submits that she served on the first respondent the application and the statement of claim on 12 January 2022 by registered post, and it was delivered to the first respondent address of service on 14 January 2022 which was obtained from an ASIC extract and an affidavit of service evidencing the above was lodged with this court on 10 February 2022. Service by post ls allowed to corporations under section 109X Corporations Act 2000,
"(1) For the purposes of any law, a document may be served on a company by:
(a) leaving it at, or posting itto, the company's registered office; or"
It is very obvious that the proceeding commenced in the court and the first respondent was aware of it before any kind of application was made to deregister the first respondent company; THE CORPORATIONS ACT 2001 - SECT 500 Execution and civil proceedings provides the following:
(1)Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.
(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.
(3)The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in ifs, her or its hands to which the company is prima facie entitled.
In conclusion, it is clear that the liquidators of the first respondent went through the deregistration process knowing that there was a civil action against them and as such the person contacted the court should be made liable to defend the allegations against the first respondent whether attended the court or not.
On 10 June 2022, the second respondent filed an affidavit (witnessed in Victoria) taking issue with the claims made by the applicant against her and setting out her side of the dispute along with a notice of address for service (in the Northern Territory).
By the time the matter returned to Court today, the applicant had not filed any (responding) affidavit material and (save for the fourth respondent) there had been no formal responses filed save that the position of the second and third respondents was set out in their affidavits.
Given the above, it is convenient to first consider what should be done with the fourth respondent’s application in a proceeding.
SUMMARY DISMISSAL OF THE APPLICATION BY THE FOURTH RESPONDENT
The application in a proceeding (and supporting affidavit) filed by the fourth respondent on 11 April 2022 sought an order summarily dismissing the initiating application as against her under Rule 13.13 of the Rules.
The applicant’s submissions in response set out the reasons as to why she said that the fourth respondent should not be removed as a party to the proceedings.
The relevant legislation in relation to the Court’s power to order summary dismissal, is found in s.46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and r.13.13 of the Rules. These Rules generally reproduce the former Federal Circuit Court Rules 2001 (Cth), as they relate to General Federal Law matters.
Rule 13.13 provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Summary dismissal of a matter is a procedure that should be used sparingly. Perry J in Riva Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 summarised the relevant principles dealing with s.31A of the Federal Court of Australia Act 1999 (Cth) which is in all respects, identical to s.46 of the FCFCOA Act. They are as follows:
(a)the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: (see Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 at [45]).
(b)the exercise of powers to summarily terminate proceedings must always be attended with caution: (see Spencer v The Commonwealth [2010] HCA 28 at [23]).
(c)the power to summarily dismiss should never be exercised, unless it is clear that there is no real question to be tried: (see Fancourt v Mercantile Credits Ltd (1083) 154 CLR 87 at [99]).
(d)the exercise of the power to summarily dismiss, requires a practical judgement by the Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgement of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed a view that the applicant is unlikely to succeed on the factual issue: (see Spencer v The Commonwealth [2010] HCA 28 at [46]).
(e)however, the inquiry required is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail: (see Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 at [49]).
Where there is factual material, the Court is required to consider the evidence produced by the applicant at its highest and if it, as a matter of law, establishes that the applicant has no reasonable prospect of success. It does not involve an adjudication on the merits.
The procedure to be followed in a summary dismissal application was set out by Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Ors [2008] 167 FCR 372 at paragraph [126]. It is as follows:
(1)identification of the cause of action pleaded;
(2)identification of the pleaded facts said to give rise to that cause of action;
(3)a review of the evidence (if any) tendered in support of the claim for judgement;
(4)identification of the defence pleaded;
(5)identification of any facts pleaded which are said to give rise to the defence; and
(6)a review of the evidence (if any) tendered in defence of the claim.
To the extent it has been possible to do so those matters have been set out above by reference to the material filed.
The relevant principles in relation s.550 of the FW Act were summarised in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] to [178]. This summary was approved in Fair Work Ombudsman v Hu [2019] FCAFC 133 at [15].
Importantly for present purposes under a provision which provides for accessorial liability for breach of civil remedy provisions action may be taken against accessories without taking action against the principal: Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors [2001] FCA 187 at [51]. An action may continue against an accessory when discontinued against a principal: Torpia v Empire Printing (Australia) Pty Ltd [2009] FMCA 853 at [65]. An accessory may also be liable where a company has been deregistered: Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor and Fair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506 at [21]-[26].
Also importantly general denials are insufficient: (see Fair Work Ombudsman v South Jin Pty Ltd and Ors [2013] FCA 1057 at [28]) and a genuine factual dispute will require the matter to be determined at trial, where witnesses can be called and evidence tested.
In the context of the application in a proceeding, the fourth respondent carries the onus of establishing that the applicant has no reasonable prospects of success. At this stage it is possible there is a specific factual or evidentiary dispute that would render a trial necessary.
Therefore, in this case, given the allegations in the statement of claim which are at least arguable (and that the applicant is yet to file any affidavit material) the summary dismissal application is brought prematurely and the application in a proceeding should be dismissed.
STATUS OF THE FIRST RESPONDENT
The information provided to the Court indicates that (sadly not only has the former owner of the business that used to operate the child care centre died since these proceedings were commenced but) the first respondent was deregistered under the Corporations Act 2001 (Cth) on 17 February 2022.[4]
[4] see paragraph [10] above.
The applicant submitted that “the proceedings against the first respondent should continue” alleging that the date of the proceedings preceded the date of deregistration by the company that operated the first respondent, claiming inter alia:
It is very obvious that the proceeding commenced in the court and the first respondent was aware of it before any kind of application was made to deregister the first respondent company
…
[i]t is clear that the liquidators of the first respondent went through the deregistration process knowing that there was a civil action against them and as such the person contacted the court should be made liable to defend the allegations against the first respondent whether attended the court or not.
Be that as it may, a question arises as to the effect of the deregistration of the first respondent.
In Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor and Fair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506 Lucev J addressed this issue as follows:
21.A question arises in the Blacklight Investments Matter as to the effect of the deregistration of Blacklight Investments.
22.In Amcus Pty Ltd v Hurst Rentals Pty Ltd & Ors (No.2) the New South Wales Supreme Court dealt with the issue of whether proceedings ought to be continued, or otherwise dealt with, in circumstances where a defendant had been deregistered under s.601AD(1) of the Corporations Act 2001 (Cth).
23. Section 601AD(1) of the Corporations Act provides as follows:
(1) A company ceases to exist on deregistration.
Note: Despite the deregistration, officers of the company may still be liable for things done before the company was deregistered.
24. In Amcus the New South Wales Supreme Court observed that:
a)proceedings by a plaintiff company abate, in that they are extinguished or annulled, upon dissolution of the company;
b)the abatement principle extends to proceedings in which a dissolved corporation is a defendant; and
c)the proper approach to the abatement proceedings involving a dissolved company is that a court must do nothing except restrain from proceeding any further.
25.In Amcus there was some discussion of circumstances where it might be appropriate for an order of dismissal to issue, such as where pleadings were defective or there was a sufficiently active pursuit of the case pleaded on behalf of the dissolved company so that the conduct could be characterised as an abuse of process and the pleading struck out on that ground. Neither of those factors was present in Amcus. Nor are they present in this case where Blacklight Investments has not filed a response prior to deregistration, and has not appeared before the Court prior to deregistration.
26.Therefore, insofar as Blacklight Investments is concerned the proceedings are a nullity, and there is no necessity for the Court to make any further order concerning Blacklight Investments. The Blacklight Investments Matter can therefore only be approached on the basis that there is one remaining respondent, that is Mr Leppard, and “as the note to s.601AD[(1) of the Corporations Act] makes plain, company officers may still be liable for anything done prior to the deregistration of their company.
Importantly, in proceedings such as those brought in this matter by the applicant under the FW Act (invoking specifically s.550), liability of an accessory is separate from and not conditional upon a finding being made against the “primary” contravenor. An applicant may proceed against a person involved in a contravention even if a claim against the principal contravenor is not pursued. An action may continue against an accessory even when discontinued against the principal contravenor and an accessory may also be liable where, as here, a company has been deregistered.
However, given the passage of events since the application was filed and that the company that operated the business of the first respondent was de-registered under the Corporations Act2001 (Cth), the applicant faces insuperable difficulties in prosecuting any proceeding against that entity (which no longer exists) in this Court.[5] The matter can therefore only be approached on the basis that there are three remaining respondents.
[5] see s.58AA of the Corporations Act 2001 (Cth) which defines “Court”.
THE OTHER RESPONDENTS
In this matter, as a result of the various directions made (set out at paragraphs [5] to [15] above) all of the remaining respondents have now filed an affidavit. The applicant is yet to file an affidavit setting out her evidence in support of the allegations contained in the statement of claim.
The complaints made about the applicant’s non-compliance to the extent that they are made out are not of the nature of those referred to in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 such as to justify dismissal for default under the Rules. Notwithstanding the submissions made by some of the respondents (seeking to invoke the default provisions in the Rules) at this stage, those are not an appropriate order to make given inter alia those respondents now know the allegations made against them and have had an opportunity to respond.
In so far as the third respondent raises issues regarding the s.365 certificate issued by the Fair Work Commission before these proceedings were commenced that she was not mentioned in it provides no basis preventing this Court from dealing with these proceedings.[6]
[6] Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962.
CONCLUSION
Finally, once the remaining parties have all filed affidavits (for which directions will be made this day) it is the Court’s view that this matter should proceed to mediation where, with the benefit of a Registrar of this Court assisting the parties, it is hoped that an amicable solution can be reached. Should the meditation prove unsuccessful, the matter will return to the Court for further directions as necessary. For the reasons set out above I will make the orders as set out at the beginning of these reasons
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 12 July 2022
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