Sneesby v Farragher Support Services Pty Ltd

[2013] FWC 8479

[2013] FWC 8479

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Lynne Sneesby
v
Farragher Support Services Pty Ltd
(U2013/9861)
COMMISSIONER WILSON	MELBOURNE, 30 OCTOBER 2013

Application for relief from unfair dismissal - s.500(2) of the Corporations Act - voluntary liquidation - application stayed.

[1]        On 23 May 2013, Ms Lynne Sneesby made an application for remedy for unfair

dismissal under s.394 of the Fair Work Act 2009. Ms Sneesby’s employment was terminated
by Farragher Support Services Pty Ltd (Farragher Support Services) on 7 May 2013.

[2]        On 6 June 2013, Farragher Support Services filed their response to the application.

[3]        The matter was subject of conciliation however, it was not resolved. Directions were

issued and the matter was listed for hearing.

[4] On 27 August 2013, the Fair Work Commission (the Commission) received correspondence from the representative of Farragher Support Services which advised that Farragher Support Services was in external administration and that de Vries Tayeh had been appointed as liquidators.

[5]        On 20 September 2013, de Vries Tayeh provided the Commission with evidence that it

was appointed as joint and several liquidators on 22 August 2013.

[6]        On 20 September 2013, de Vries Tayeh advised the Commission that it objected to Ms

Sneesby’s application pursuant to s.471B of the Corporations Act 2001 (the Corporations
Act).

[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”:

[2013] FWC 8479

“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

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

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

[2][2012] FWA 7275 at [11] - [16]

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, Ms Sneesby’s application pursuant to s.394 of the Act was filed on

23 May 2013 and the passing of the resolution for winding up occurred on 22 August 2013.

[12] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am

satisfied that Ms Sneesby’s application cannot proceed any further in the Commission except
by leave of the Court.

[2013] FWC 8479

[13] Therefore, Ms Sneesby’s application under s.394 of the Act is stayed until leave of the

Court is granted.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR543881>