Simiao Chen v All Colour Media Printing (Vic)

[2018] FWC 6783

[2018] FWC 6783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simiao Chen
v
All Colour Media Printing (VIC)
(U2018/8582)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 22 August 2018, Mr Simiao Chen 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). Mr Chen named All Colour Media Printing (VIC) (ACMP) as the respondent entity in his Form F2 – Unfair Dismissal Application (Form F2).

[2] On 6 September 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 19 September 2018.

[3] On 18 September 2018, ACMP sought an adjournment of the conciliation. The conciliation was later re-listed for 2 October 2018. However, on 2 October 2018, no one from ACMP attended the conciliation.

[4] On 8 October 2018, a Notice of Listing and directions were issued to the parties. The material was sent to ACMP via express post and was confirmed to have been delivered on 12 October 2018.

[5] On 19 October 2018, the Commission received correspondence from Mr Adrian Warry, Joint and Several Liquidator at Dye & Co Pty Ltd. Mr Warry advised that he and Mr Nicholas Giasoumi had been appointed Joint and Several Liquidators of ACMP by a resolution of the members of ACMP passed at a duly convened meeting on 5 October 2018. Mr Warry also provided the ASIC Form 505, confirming his appointment as liquidator.

[6] On 24 October 2018, correspondence was sent to Mr Chen via email and post advising that creditors had passed a resolution to voluntarily wind up ACMP and a liquidator had been appointed. The letter referred Mr Chen to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The correspondence also noted that if Mr Chen had a different view, the matter would be set down for a jurisdictional hearing. Mr Chen was asked to advise the Commission if he wished for the matter to be set down for a jurisdictional hearing by close of business on 31 October 2018.

[7] To date, Mr Chen has not made contact with the Commission.

[8] 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.”

[9] 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.”

[10] 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.

[11] 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.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].