Robert Burridge v Jacmah Enterprises Pty Ltd T/A X-Men Security Services

[2019] FWC 3226

[2019] FWC 3226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Burridge
v
JACMAH Enterprises Pty Ltd T/A X-Men Security Services
(U2019/3279)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2019

Application for an unfair dismissal remedy – voluntary liquidation – application stayed.

[1] On 22 March 2019, Mr Robert Burridge made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Unfair Dismissals Direct, Mr Burridge’s representative, filed the application on his behalf.

[2] On 10 April 2019, the Commission received email correspondence from Employment Services & Solutions Australia (ESSA) advising it previously acted for Jacmah Enterprises Pty Ltd (Jacmah) and had received Mr Burridge’s claim. ESSA advised that Jacmah entered into liquidation on 22 March 2019.

[3] On 16 April 2019, the day the conciliation was scheduled for, the Conciliator was advised the liquidator was not in a position to settle the matter and had no authority to do so. The matter was then referred for further case management.

[4] A review of the ASIC insolvency notices database showed that at a general meeting of members, it was resolved that the company be wound up and that Simon Coad be appointed liquidator.

[5] On 18 April 2019, I caused correspondence to be sent to Mr Burridge and Unfair Dismissals Direct advising that the creditors of Jacmah had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Burridge to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view the claim cannot proceed unless he obtained leave from the Court.

[6] To date, no further contact from Mr Burridge or Unfair Dismissals Direct has been made with the Commission.

[7] 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.”

[8] Section 58AA of the Corporations Act provides the following definition in relation to the 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 9.6A, 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.”

[9] Having regard to this provision and of the Full Bench decision of Smith v Trollope 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.

[10] 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.

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

DEPUTY PRESIDENT

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].