Vishal Choudhary v Padbury Sky (Preston) Pty Limited

[2014] FWC 6754

[2014] FWC 6754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vishal Choudhary
v
Padbury Sky (Preston) Pty Limited
(U2012/15603)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 29 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 24 December 2012, Mr Vishal Choudhary (Applicant) made an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).

[2] On 8 May 2013, my Chambers was notified by email that Padbury Sky (Preston) Pty Ltd (Respondent) on 2 April 2013 had determined by way of resolution to be wound up and that a liquidator would be appointed for that purpose.

[3] S.500 of the Corporations Act relevantly provides as follows:

“500 Execution and civil proceedings

(1) ...

(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.

(3) ...”

[4] A “court” and “Court” are defined for the purposes of the Corporations Act in s.9, which provides that, unless the contrary intention appears, the meanings are given by s.58AA.

[5] In turn, s.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.

[6] The Commission does not have power to continue to deal with this application without leave of the Court in the circumstances set out in [2] above. 1

[7] On 10 May 2013 I stayed the further hearing of the application until such time as that the Applicant sought and obtained leave from the Federal Court of Australia to continue these proceedings or the administration of the Respondent ceased 2.

[8] The Applicant advised my Chambers by email on 29 May 2013 that he had made such an application to the Federal Court and would advise of the outcome. The application has since been dismissed.

[9] On 30 October 2013 my Chambers wrote to the Applicant advising that:

“...your application before the Fair Work Commission will be stayed until Padbury Sky (Preston) Pty Limited ceases to be in administration, is wound up or is de-registered. It will be your responsibility to advise the Fair Work Commission if any of the above circumstances eventuate.”

[10] The Respondent was deregistered on 23 December 2013.

[11] Correspondence was sent to the Applicant on 2 September 2014 and 12 September 2014 advising of my intention to dismiss the application and seeking submissions whether this course of action was opposed.

[12] The Applicant has not replied to that correspondence.

[13] In the circumstances of this matter, I am satisfied that as a consequence of the Respondent being deregistered, the application has no reasonable prospects of success.

[14] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[15] The application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued separately.

DEPUTY PRESIDENT

 1   Silalhi v CMI Industrial (Forge)[2012] FWA 7275

 2   PR544070

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