Rhind v Deliveroo Australia Pty Ltd (Administrators Appointed)
[2023] FedCFamC2G 50
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rhind v Deliveroo Australia Pty Ltd (Administrators Appointed) [2023] FedCFamC2G 50
File number(s): CAG 38 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 2 February 2023 Catchwords: INDUSTRIAL LAW – Practice and procedure – respondent company placed in voluntary administration while judgment reserved – administrators do not consent to judgment being delivered or any other step taking place in the litigation – no application made to seek leave of the court to proceed to deliver judgment – this court is not a relevant, superior court that could hear and determine such application – respondent company to be de-registered – no indication by anyone, including the applicant, that an application would be made to re-instate the company, which would be a pre-requisite to any aspect of the litigation proceeding or continuing – in the light of authority confirming that once administrators are appointed all actions involving the company are “frozen” or “quarantined”- court declining to deliver judgment, which would only relate to potential liability and could not be enforced because of the operation of s.440F of the Corporations Act 2001 (Cth) – consideration of the making/not making of “futile orders” – indicative orders noted to the effect that absent an application for reinstatement of the company within 12 months of the date of its de-registration, and relevant leave of a superior court sought to proceed with the matter, all outstanding applications will be dismissed under s.140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Legislation: Corporations Act 2001 (Cth) s.58AA, 440D, 440F, 440G, 601AH
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.140
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; 398 ALR 404
Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156
Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 244 ALR 161
Re Capital General Corporation Ltd (2001) ACSR 158
Workpac Pty Limited v Rossato (2021) 271 CLR 456
ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; 398 ALR 603
Australian Securities and Investments Commission Regulatory Guide 83 regarding reinstatement of corporation
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 5 – 6 November 2020, 5 September 2022 Place: Canberra Counsel for the Applicant Mr M Gibian SC Solicitors for the Applicant Michael Doherty Legal, Sydney Counsel for the Respondent Mr M Felman KC Solicitors for the Respondent MinterEllison, Melbourne Solicitors for Administrators King & Wood Mallesons ORDERS
CAG 38 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JEREMY RHIND
ApplicantAND: DELIVEROO AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED)
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
2 Febuary 2023
ON A FINAL BASIS, THE COURT INDICATIVELY NOTES THAT:
A.The current proceeding be stayed for 12 months.
B.Absent any Application within 12 months of the date of the Respondent Company’s de-registration for:
a.re-registration of the Respondent Company; and
b.leave to proceed with the matter from a relevant Court as specified in s.58AA of the Corporations Act 2001 (Cth);
all outstanding Applications will be dismissed under s.140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
AND THE COURT NOTES THAT:
C.It is requested that the lawyers for the Administrators confirm to the Court when Deliveroo is de-registered (and the date of).
D.The matter will be removed from the active case list pending any further Application.
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
JUDGE W J NEVILLE
Introduction
This matter was first heard in November 2020. It was acknowledged by both parties that it was a “test case” regarding whether “riders” for the Respondent (“Deliveroo”) were employees (as the Applicant alleged) or independent contractors (as the Respondent alleged). In effect, the parties wanted, in particular, for this Court to make factual “findings” regarding the employment relationship between them, following which it was likely that, based on those findings, on appeal by one or other of them, the Full Federal Court of Australia would determine authoritatively relevant tests regarding the status of such riders. The issues then before the Court only concerned matters of “liability”. Any matters regarding “penalty” or compensation of any sort, would necessarily have to await the Court’s determination regarding liability.
Early in the course of this litigation it became known that other matters, some involving the Respondent, which involved almost identical issues, were being conducted elsewhere.[1] With the further effluxion of time, it also became clear that one or more of these “other matters” were wending their way to the door of the High Court (noted below). That being so, with the result that the High Court would conclusively determine relevant principle regarding the features of who was, and who was not, an independent contractor, the parties agreed to put “on hold” the determination of the issues involving the parties in this Court. It was further agreed that upon the High Court delivering its decisions in these “other matters”, provision would be made (and was made) for written and oral submissions to be provided to the Court in the current proceeding.
[1] See, for example, Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156.
In August 2021, the High Court delivered judgment in Workpac Pty Limited v Rossato concerning contracts of employment and the nature and incidents of “casual employment.”[2]
[2] Workpac Pty Limited v Rossato (2021) 271 CLR 456.
In February 2022, the High Court delivered judgment in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, and in ZG Operations Australia Pty Ltd v Jamsek, both cases outlining principles regarding contracts of employment and the nature and incidents of who is, and who is not, an “independent contractor.”[3]
[3] Construction, Forestry, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; 398 ALR 404, and in ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; 398 ALR 603.
After having filed detailed written submissions, Senior Counsel for both parties made oral submissions on 5th September 2022.
By letter dated 16th November 2022, the Court was advised by KordaMentha that, pursuant to s.440G(1) of the Corporations Act 2001 (Cth) (“the Act”), Administrators had been appointed to the Respondent. The letter further advised that the right to deal with “any of the [Respondent] Company’s property” was now subject to s.440G(2) of the Act. By email dated 24th November 2022, lawyers for the Respondent said that, in the light of Deliveroo being in voluntary administration, pursuant to s.440D of the Act the current proceedings were stayed.
As an observation only, it is difficult to conceive that, in the light of the appointment of Administrators on 16th November 2022, the Respondent did not know when submissions were being made in the current matter on 5th September 2022 that it was more likely than not that Deliveroo would shortly be closed down.
On 18th November 2022, my Chambers wrote (by email) to the parties’ lawyers to confirm or to note the developments regarding the Respondent and the appointment of Administrators. The email also noted reports to the effect that moneys owed by the Respondent to “its” riders/drivers would likely result in such claims being treated as unsecured creditors.
Further still, the Court noted generally the usual procedural impediments to litigation in the circumstances in which the Respondent found itself, and that, among other things, leave of the Court would be required for any litigation to proceed. Moreover, under the Act (s.58AA), this Court was/is not relevantly such a Court that could grant such leave.
In these unusual circumstances, the Court inquired of the parties how the Court should proceed, and indeed, whether it was possible for the matter to proceed even while judgment was formally reserved. In the course of the detailed correspondence which followed, for more abundant caution and for ease of procedure, the Court indicated (by email dated 19th December 2022) that it would treat the relevant correspondence as formal submissions in the circumstances. In the circumstances, also for abundant caution and proper process, the Administrator of the Respondent was included in such correspondence, which is set out below and described as “submissions.”
By email from the Respondent’s lawyers, dated 29th November 2022, the Court was advised that the Administrators did not consent to any leave being granted for the matter to proceed. They said that “the continuation of the proceeding will not assist the Administrators in the performance of their duties …”
The immediate issue is whether, in the circumstance summarily outlined here, with the Respondent being under the governance of Administrators, the Court should proceed to judgment where it would appear to be jurisprudentially (and in almost all other respects) otiose and/or inutile to do so. Put another way, it might also be said that, because Courts do not make “futile Orders”, it would otherwise be inapt to proceed in any event.[4] The Applicant contends that a judgment should issue but without making any Orders (and to grant liberty to apply) notwithstanding the statutorily imposed limitation (under s.440F of the Act) to enforce any judgment, should it issue in his favour. The Respondent, and more particularly the Administrators, advocate against the Court issuing any judgment at all.
[4] On matters going to the discretion to grant relief and considerations of “futility”, see the discussion by Allsop J (as his Honour then was) in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 244 ALR 161.
Correspondence from the lawyers acting for the Administrators, dated 21st December 2022, which enclosed a copy of the Notice of Second Meeting of Creditors of Company under administration (dated 14th December 2022), and the Report by Administrators, advised that at that meeting, which was held on 21st December 2022, a Deed of Company Arrangement was approved by creditors. The lawyers further advised that, upon the imminent execution of that Deed, the Respondent would be deregistered.
More recently still, by email dated 13th January 2023, lawyers for the Administrators confirmed that the Deed of Company Arrangement was executed on 21st December 2022, and became effective on that date. Pursuant to that Deed, the lawyers advised that all claims against the Respondent Company, as at the date of the appointment, would be extinguished. The further information given in the email was that steps to de-register the Respondent were expected to take place in early February 2023.
Leaving to one side the philosophically curious notion of writing a judgment about whether to write a judgment, for the reasons that follow, which essentially accept the submissions by or on behalf of the Administrators, in the Court’s view, and pursuant to the Court’s own motion pursuant to s.140 of the FCFCOA Act: (a) the current litigation should be stayed for 12 months; and (b) in the light of the Respondent Company being de-registered, and absent any Application to re-register the Respondent Company within 12 months of the date of its de-registration, and absent any Application in a relevant Court as specified in s.58AA of the Act within the next 12 months of the date upon which the Respondent is de-registered, there will issue a self-executing Order by which all outstanding Applications, and any matters relating thereto, shall be dismissed. The above course should be taken as “indicative Orders” having regard to any possible issue arising under s.440D of the Act. Otherwise, the matter will be immediately removed from the active case-pending list.
Statutory provisions
The following provisions of the Corporations Act 2001 (Cth) are immediately relevant to the current matter:
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 Federal Circuit and Family Court of Australia (Division 1);
(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 9.6A, be brought in any court.
Note:The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.
440D Stay of proceedings
(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a)with the administrator’s written consent; or
(b)with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
(2) Subsection (1) does not apply to:
(a)a criminal proceeding; or
(b)a prescribed proceeding.
440F Suspension of enforcement process
During the administration of a company, no enforcement process in relation to property of the company can be begun or proceeded with, except:
(a)with the leave of the Court; and
(b)in accordance with such terms (if any) as the Court imposes.
440G Duties of court officer in relation to property of company
…
(7) The Court may, if it is satisfied that it is appropriate to do so, permit the court officer to take action, or to make a payment, that subsection (2) would otherwise prevent.
The following provision of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) are relevant to the current matter:
140 Making of orders and issue of writs
The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:
(a)make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Court considers appropriate.
The Applicant’s submissions
On 25th November 2022, the Applicant provided the following email in response to an email from the Court regarding the parties’ position as to the continuation of litigation (emphasis in original):
Dear Associates
The Applicant notes the Respondent's position regarding His Honour delivering judgement.
Unfortunately, without being critical, the Respondent’s lawyer's email did not indicate whether the Administrator would consent to judgment being delivered. If the Administrator does not consent, the Applicant seeks under s.440D(1)(b) for the proceedings to continue in order for His Honour to deliver judgement.
We note the following factors regarding leave being granted:
•The proceedings are well advanced, with only delivering judgement remaining;
•The claim has a solid foundation and gives rise to a serious dispute;
•The Administrator would not be unreasonably distracted from his statutory duties and be obliged unnecessarily to incur substantial legal costs as the matter is finalised save for judgment being delivered;
•It is unclear whether s.440D of the Corporations Act prevents a Court from delivering a reserved judgment;
•Judgment would assist the Applicant and the Administrator in determining whether the Applicant is a creditor of the Respondent;
•We understand that the Respondent has set aside funds to pay creditors and, if successful, the Applicant’s monetary claim is very modest;
•Judgment would be in the public interest as it would assist others in similar circumstances to the Applicant and the Administrator in determining whether these persons may be creditors of the Respondent;
The Applicant would be happy to provide more full submissions on the matter if this would help His Honour.
A further email was sent to Chambers by the Applicant on 13th December 2022 as follows: (emphasis in original)
Dear Associate,
We refer to your email below.
We apologise for not responding to His Honour’s earlier email.
We refer to the correspondence from the administrator to the effect that it does not consent to leave to proceed or otherwise consent to the continuation of the proceedings and the subsequence correspondence from the Court expressing the view that, in those circumstances, leave would need to be obtained from the Federal Court under s 440D(1)(b).
In earlier correspondence to the Court, the applicant noted that it is unclear whether s 440D of the Corporations Act prevents a Court from delivering a reserved judgment. After further consideration, there is authority that s 440D does not prevent a Court delivering reserved judgment in a matter which has already been heard. For example, Lansdowne AsJ said in M F Ltd v Compliance and Risk Services Pty Ltd (2013) VSC 213 at [11]: “The section… does not prevent the delivery of judgment in respect of an application already heard, which is a step taken by the Court, not by a party”: see also In the matter ofTolco Pty Limited [2016] NSWSC 1069 at [2] (Brereton J) and Curnow Consulting Pty Limited v JPD Media and Design Pty Ltd t/a Durie Design (No. 3) [2018] NSWSC 827 at [12] (Slattery J). In Talco and Curnow Consulting, the course adopted was to deliver judgment indicating the decision of the Court, but without, at that stage, making formal orders. In each case, the Court reserved the making of formal orders until a later date and granted liberty to apply
In the circumstances, it is not necessary for leave to be sought under s 440D(1)(b) of the Corporations Act in order for the Court to deliver reasons for judgment as the hearing of the proceedings is concluded. The Court should adopt the practical course adopted in Talco and Curnow Consulting, namely, it should deliver judgment indicating the orders the Court would make but reserve making formal orders until a later date and grant liberty to apply. In the alternative, and in any event, the application should not be dismissed. At this stage, at most, the proceedings are stayed as a result of the respondent being placed in administration and the proceedings are not defunct.
The Respondent’s submissions
On 24th November 2022, the Applicant provided the below email (in response to correspondence from the Court) advising of his position (emphasis in original):
Dear Associates
We refer to the abovenamed proceeding (CAG38/2019) (Proceeding). We act for the respondent. The solicitor for the applicant is copied to this correspondence.
On 16 November 2022, Craig Shepard, Andrew Knight and Michael Korda (Administrators) were appointed as voluntary administrators of Deliveroo Australia Pty Ltd (administrators appointed) (Deliveroo).
Now that Deliveroo is in voluntary administration, the Proceeding is stayed by operation of section 440D of the Corporations Act 2001 (Cth) and, as such, no orders can be made and no further steps can be taken in the Proceeding without the consent of the Administrators or leave of a Court.
It is the responsibility of the Administrators to adjudicate creditor claims in accordance with the statutory regime contained in the Corporations Act 2001 (Cth). Administrators typically carry out this process in their capacity as voluntary administrators without judicial assistance. In that regard, the Administrators do not require his Honour to deliver his reserved judgment in the Proceeding in order to carry out this task.
…
A further email was sent to Chambers by the Respondent on 29th of November 2022 (emphasis in original):
… We refer to the emails below and confirm that we act for the respondent.
For clarity, we are instructed that the administrators do not consent to leave to proceed, as the continuation of the proceeding will not assist the administrators in the performance of their duties as set out in our previous email.
Please feel free to contact us with any queries.
The Administrator’s submissions
On 21st December 2022, the Administrator of the Respondent provided the following email (emphasis in original):
Dear Associates
Thank you for your email. We act for the administrators of Respondent in the abovenamed proceeding.
We acknowledge the authorities cited by the solicitors for the Applicant in their email of 13 December 2022. However, the highest the Applicant can put the proposition is that the authorities are conflicted on this question. For example, the Full Court of the Family Court decided in X Pty Ltd v Milstead [2015] FamCAFC 50 at [32]–[50] held that the moratorium in section 440D of the Corporations Act 2001 (Cth) (Corporations Act) does extend to preclude a court from delivering a judgment.
Further, there is limited utility in His Honour delivering his reserved judgment in the following circumstances:
(a) Regardless of whether judgment is delivered, no order can be made in the proceeding without leave of a Court or the administrators’ consent. The authorities are unequivocal on this point as was noted in the Applicant’s solicitor’s email (see for example two authorities referred to in the Applicant’s solicitor’s email of 13 December 2022: Re Tolco Pty Ltd [2016] NSWSC 1069 and Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd (No 3) [2018] NSWSC 82).
(b) There has been no indication from the Applicant whether they intend to bring an application for leave to proceed, nor are we aware of any legal basis upon which leave to proceed ought to be granted. The administrators do not propose to provide their consent to any application for leave to proceed in such circumstances. As such, no orders can be made by this Court or enforced by the Applicant.
(c) In any event, we understand that the judgment currently reserved by His Honour is only in respect of a preliminary issue, not the final decision, and so would be of limited utility, even if published.
(d) As previously stated by solicitors for the Respondent, MinterEllison, the administrators do not require His Honour to deliver his reserved judgment in the proceeding in order to adjudicate creditor claims in accordance with their statutory duties contained in the Corporations Act. Mr Rhind can, like all creditors, submit a proof of debt, which will be adjudicated by the administrators in due course.
(e) Finally, the statutory convening period for the Company ended on 14 December 2022 pursuant to section 439A(5) of the Corporations Act. Accordingly, the administrators were required to, and have, convened the second meeting of creditors in accordance with section 439A(2) of the Corporations Act on 21 December 2022. The report to creditors prepared by the administrators the Corporations Act and accompanying notice of meeting are attached to this email for reference.
Please let us know if we can be of further assistance.
…
The Administrators further advised the Court as follows by email on 21st December 2023 (emphasis in original):
Dear Associates
We confirm that during the second meeting of creditors of Deliveroo Australia Pty Ltd (administrators appointed) held this morning, a deed of company arrangement was approved by creditors.
In accordance with the terms voted on by creditors, it is anticipated that the deed of company arrangement will executed in the coming days and will effectuate shortly thereafter. Following this, Deliveroo Australia Pty Ltd (administrators appointed) will be deregistered by its director.
Please let us know if we can be of further assistance.
A further email was received by Chambers from the Administrators on 13th January 2023 (emphasis in original):
Dear Associates
Thank you for your email.
We confirm the Company executed a deed of company arrangement on 21 December 2022, which became effective from that date (DOCA). The effect of the DOCA will be to extinguish all claims against the Company existing as at the date of the appointment.
Further, following effectuation of the DOCA, the director will take steps to deregister the Company. The Administrators expect effectuation to occur in early February 2023.
Please let us know if we can be of any further assistance to his Honour.
Consideration and Disposition
As completely unfortunate for all involved as the current circumstances are, especially for the Applicant, in my view, the immediate rather unusual procedural imbroglio is somewhat readily resolved by reference to the sections noted above, and by reference to the following decisions.
First, in Foxcroft v Ink Group Pty Ltd (“Foxcroft”), Young J (in the Supreme Court of New South Wales) said (at 204 – 205) (emphasis added):[5]
The provisions of Pt.5.3A, as exemplified in sections such as 437C, 437F, 440C and 440D, provide that there shall be a complete freeze of proceedings against the company during the administration so that the administrator can have time to assess the situation, and the company’s creditors have an opportunity to work out the net position and adopt an attitude under s.439C which will be in their common interest. To allow one creditor or potential creditor to proceed would not only take the administrator’s attention from what he needs to do under the division in a relatively short period of time, but it would also involve costs in running legal action on behalf of the administrator, as well as perhaps giving the claimant some advantage over other creditors or potential creditors.
[5] Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203.
His Honour went on to record, in quite general terms, that in his view an application for leave under s.440D would rarely be granted. As noted in the submissions, there is no suggestion that any Application for such leave is contemplated by either of the parties here.
Secondly, in the Supreme Court of Victoria in Re Capital General Corporation Ltd (“Capital General”), at [11] – [22], Warren J also discussed the operation of s.440D. For current purposes, it is sufficient to note the Court’s comments at [20] – [22] (italicised emphasis in original; italicised and underlined emphasis added):[6]
[20] Ultimately, the correct approach in my view is to construe s. 440D(1) of the Law as intended to stay proceedings "against the company" or "in relation to any of its property" pending the completion of the winding up. The purpose of the section is to prevent the creation of preferences and interference in the disposition of the property of the subject company prior to the completion of the administration.
[21] The purpose of the section is to enable the administrators also to continue with their task without the distraction of the consideration and management of litigation. In the present matter, whilst on one view it may be argued that the oppression proceeding is concerned with the position of a director of a company and the shareholding entitlement of that director and as such is not concerned with the "property" of the company subject to administration in my view that misconceives the underlying purpose of the oppression proceedings. The purpose of those proceedings is to rearrange the affairs of Capital General so as to reinstate Rodgers as a director and reinstate or adjust the shareholding in the company. These matters of themselves broadly speaking go to the property of the company.
[22] In my view, in accordance with the usual principles, there has been no proper basis put before me to justify the granting of leave pursuant to s. 440D(1)(b) of the Law. In my view the other sections in Part 5.3A of the Corporations Law concerned with administration demonstrate that it was the intention of the legislature to set in place a scheme such that whilst a company was subject to administration the property and affairs of the company were quarantined pending actions and decisions by the administrators and the creditors. So much is borne out by the additional provisions in Part 5.3A of the Law including s. 440F whereby enforcement process is suspended, s. 440G so that a court officer is precluded from taking action in relation to the property of a company under administration eg. a sheriff or registrar and s. 440J whereby a guarantee of liability of the company cannot be enforced or an enforcement proceeding begun whilst a company is subject to administration.
[6] Re Capital General Corporation Ltd (2001) ACSR 158.
In short:
(a)There has been no suggestion that anyone, including the Applicant, has sought, or will seek, leave of the Court under s.440D to proceed with any aspect of the current litigation against the Respondent. The jurisprudence to which I have referred strongly suggests that such leave Applications are very difficult to prosecute successfully. The same general comments seem to apply to any Application under s.440F. There has been no reference to this section regarding “enforcement” in any of the submissions provided to the Court. This is understandable for the simple reason that the issue of “liability” has not been determined, a necessary step of course before any issue of enforcement might arise;
(b)Even if such an Application was to be brought, it could not proceed in this Court because of the terms of s.58AA of the Act. Such an Application must be brought in a superior Court. This seems to be tacitly accepted by the parties and also by the Administrators because there has been no comment to the contrary by anyone;
(c)The jurisprudence to which I have referred makes plain that, pursuant to the terms of s.440D, the property and affairs of the Respondent Company are “quarantined” (Capital General), or placed in a “complete freeze” (Foxcroft). Such terms strongly suggest that there are no, and cannot be, any relevant exceptions to the “complete freeze” or “quarantine”. As Young J noted in Foxcroft, there remains, among other things, a risk of “perhaps giving the claimant some advantage over other creditors or potential creditors.” Absent any statutory exemption (which there is not), or judicial relief (which is also absent), in my view, the terms of the relevant statutory provisions, and the case law noted, provide for strict adherence that gives this Court no “wriggle room” even to take the next step to provide a written judgment that could have some impact upon the rights and entitlements of the Applicant (and potentially adversely for the Respondent), who may then become a “potential creditor”, subject to the hearing and determination of liability and any imposition of penalty or other relief. Further, as noted above, the jurisprudence refers to “creditors” or “potential creditors”, which must include the Applicant here; and
(d)The advice from the lawyers for the Administrators is that the Respondent Company will be de-registered in early February 2023. There is no suggestion, including by or on behalf of the Applicant, that there will be an Application to re-register or reinstate the Respondent Company, which would be a necessary pre-condition before any litigation could be taken, or resumed, against it.[7]
[7] For a detailed discussion of the necessary considerations regarding an Application to reinstate a company under s.601AH of the Act, see Austin J’s decision in Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688. Likewise, see detailed Regulatory Guide 83, issued by ASIC, regarding reinstatement of companies.
For these reasons, most notably in the light of the authorities to which I have referred, and in the light of the Administrators’ refusal to give consent to the matter proceeding, in my view the Court has no option other than (a) to decline to deliver the reserved judgment, among other things because it would be inutile in every relevant respect, and (b) to indicate that, absent any Application being made to an appropriate Court under ss.440D, 440G(7), or related provision, within 12 months of the date of the de-registration of the Deliveroo in Australia, there will a self-executing Order under s.140 of the FCFCOA Act dismissing all outstanding Applications.
The lawyers for the Administrators are requested to confirm to the Court when (and date of) Deliveroo being de-registered.
Again to observe only: Deliveroo is an international food delivery company, apparently still operating profitably in a number of countries, including in its home country of the United Kingdom. It is difficult to believe that at the time of the preparation and delivery of the detailed written and oral submissions in early September 2022 it did not already have plans, and likely had made a decision, to shut down its operations here and to vacate the Australian market. Having doubtless created many jobs of one kind or another, those jobs are now lost. To say that the situation for all, doubtless most particularly for the Applicant and others perhaps similarly placed, is unfortunate, is certainly an understatement. Should it also need to be remarked, the Court’s resources over a significant period of time were put at the disposal of both parties, ultimately to no purposeful end.[8]
[8] Cf. the High Court’s signal comments in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, especially at [5] – [6] (French CJ), and [113] – [114] of the joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ) regarding the important use of scarce public resources and the impact upon other litigants.
Otherwise, absent any other Application, the matter will be removed from the pending cases list.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 2 February 2023
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