Scott Marsh v McCall Security Pty Ltd

[2013] FWC 9666

[2013] FWC 9666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Marsh
v
McCall Security Pty Ltd
(U2013/12799)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 DECEMBER 2013

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

[1] On 21 August 2013, Mr Scott Marsh made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Marsh’s employment was terminated by McCall Security Pty Ltd (McCall Security) on 29 July 2013.

[2] Conciliation was listed however it could not take place.

[3] On 28 October 2013, the Fair Work Commission (the Commission) received correspondence advising that McCall Security was in voluntary liquidation. The correspondence also advised that Ms Kylie Wright and Mr Peter Vince were appointed as joint and several liquidators and provided the Commission with a copy of the ASIC Form 505 - External Administration - Appointment of an external administrator.

[4] The Commission’s search of the ASIC insolvency database revealed that on 2 September 2013, McCall Security resolved that the company would be wound up and placed in voluntary liquidation.

[5] On 19 November 2013, the Commission sent correspondence to Mr Marsh which advised that the Commission had formed the preliminary view that his claim for unfair dismissal cannot proceed without leave of the Court, in accordance with s.500(2) of the Corporations Act 2001 (the Corporations Act). Mr Marsh was requested to advise the Commission by 26 November 2013 if he had a different view and if so, the matter would be set down for a jurisdictional hearing.

[6] The Commission did not receive any material from Mr Marsh.

[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”:

“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.”

[9] 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.

[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] As noted earlier, Mr Marsh application pursuant to s.394 of the Act was filed on 21 August 2013 and the passing of the resolution for winding up occurred on 2 September 2013.

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

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

DEPUTY PRESIDENT

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

 2   [2012] FWA 7275 at [11] - [16]

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