Watervale Pty Ltd v Abey
[2005] TASSC 67
•27 July 2005
[2005] TASSC 67
CITATION: Watervale Pty Ltd v Abey [2005] TASSC 67
PARTIES: WATERVALE PTY LTD (in liquidation)
v
ABEY, Tim, a Commissioner of the Tasmanian Industrial Commission
MANNING, Amanda Pearl
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LDR M24/2005
DELIVERED ON: 27 July 2005
DELIVERED AT: Hobart
HEARING DATE: 14 June 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Corporations – Winding up – Conduct and incidents of liquidation – Proceedings by or against Company – Leave to proceed – Jurisdiction – Creditors voluntary winding up – Whether application for unfair dismissal before Tasmanian Industrial Commission a civil proceeding – Whether leave of the Court is required before proceeding with such a proceeding – Corporations Act 2001 (Cth), s500(2).
Corporations Act 2001 (Cth), ss440D, 471B and 500(2).
Rochford v Textile Clothing & Footwear Union of NSW (1998) 30 ACSR 38, referred to.
Aust Dig Corporations [241]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Solicitors:
Applicant: S B McElwaine
Judgment Number: [2005] TASSC 67
Number of paragraphs: 18
Serial No 67/2005
File No LDR M24/2005
WATERVALE PTY LTD (in liquidation) v TIM ABEY – A COMMISSIONER
OF THE TASMANIAN INDUSTRIAL COMMISSION
and AMANDA PEARL MANNING
REASONS FOR JUDGMENT CRAWFORD J
27 July 2005
On 19 August 2004 the second respondent ("Ms Manning") applied under the Industrial Relations Act 1984 (Tas), s29(1A), for a hearing before a Commissioner in respect of an industrial dispute with the applicant arising out of alleged unfair termination of her employment, a claim to severance pay in respect of termination of employment as a result of redundancy and alleged breach of award and a dispute over her entitlement to long service leave or payment instead of any such leave.
On 9 November 2004 Peter Clem Dixon ("the liquidator") was appointed liquidator of the applicant pursuant to the Corporations Act 2001 (Cth), s497. It was a creditor's voluntary winding up.
The hearing of Ms Manning's application commenced to be heard by the first respondent ("the Commissioner") on 10 February 2005. Ms Manning appeared and gave evidence. Neither the applicant or the liquidator appeared or was represented. On 9 March the Commissioner determined the dispute in favour of Ms Manning and ordered, pursuant to the Industrial Relations Act, s31, that within 21 days the applicant pay her $12,905 in respect of accumulated annual leave, $4,161.50 in respect of long service leave and $5,800 by way of redundancy payment.
On 27 April an application was filed in this Court by the liquidator in the name of the applicant, seeking to have the Commissioner's decision reviewed under the Judicial Review Act 2000 (Tas), s17. On 14 June I ordered that the time for the making of the application be retrospectively extended until 27 April 2005, pursuant to the Judicial Review Act, s23(1)(b).
By a notice of submission under the Supreme Court Rules 2000, r777G, the Commissioner submitted to any order the Court makes on the application without hearing the Commissioner.
The application to review was listed for hearing before me on 14 June. Neither the Commissioner or Ms Manning appeared or was represented. The applicant was represented by counsel whose principal submission was that the Commissioner did not have jurisdiction to make the orders because of the provisions of the Corporations Act, s500(2). The subsection provides:
"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."
It was submitted for the applicant that the matter before the Commissioner amounted to a "civil proceeding" within the subsection and that it could not "be proceeded with" by the Commissioner because the "leave of the Court" had not first been obtained under the subsection. By the Corporations Act, s58AA(1), the word "Court" means the Federal Court, the Supreme Court of a State or Territory, the Family Court of Australia and a court to which the Family Law Act 1975 (Cth), s41, applies. There appears to be no doubt that the relevant leave of a court was not obtained.
The expression "civil proceeding" is not defined by the Corporations Act. By s9 the expression "'civil matter' means a matter other than a criminal matter". However, having regard to the context in which that expression is used in the Act, I have concluded that its meaning in the Act does not assist an understanding of the meaning of "civil proceeding" in s500(2).
Before the Commissioner, the representative of Ms Manning referred to three previous decisions of Commissioners as authority for the proposition that the Commissioner had jurisdiction to make orders against companies in liquidation without the need for a court's leave. They were Tata v Watts Communications Australia Pty Ltd (In Liquidation) T10387/2002, Springer v Information Solution Works Pty Ltd (In Liquidation) T11315/2004 and AFMEPKIU v Weller Engineering Pty Ltd (Receivers and Managers appointed) T9598/2001. The Commissioner appeared to accept that they were authorities for the proposition advanced. However, it was only in Tata's case that the question was expressly considered, by the same Commissioner as it turns out, and all that was said on the point was the following:
"It was submitted that Ms Tata is not entitled to proceed with the application without the leave of the court. Sections 417B and 500 of the Corporations Act2001 are relied on to support this contention.
Whilst I note this submission, I point out that the Tasmanian Industrial Commission is an independent tribunal established under its own statute. To the best of my knowledge, the Commission has never been considered to be a "court" [s 417B above refers]."
There has never been a s417B in the Corporations Act but it seems obvious that the Commissioner intended to refer to s471B. I note that it does not appear from the Commissioner's reasons in Tata how the employer came to be in liquidation. I will explain why that may be relevant.
Part 5.3A of the Corporations Act deals with the administration of companies with a view to executing a deed of company arrangement and therefore, it does not apply in the circumstances of this case. However, it is to be noted that in Div6, which deals with the protection of a company's property during administration, s440D is in these terms (with my italics):
"(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a)with the administrator's written consent; or
(b)with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
(2) Subsection (1) does not apply to:
(a)a criminal proceeding; or
(b)a prescribed proceeding."
Because subs(1) only applies to "a proceeding in a court" it possibly does not extend to proceedings before the Tasmanian Industrial Commission. In Tata's case the Commissioner made the observation that he did not sit as a court.
Part 5.4B of the Corporations Act deals with the winding up of companies in insolvency or by a court. In Div1A, which deals with the effect of such a winding up, s471B applies to the beginning or proceeding with a proceeding in a court against the company in liquidation in these terms (again with my italics):
"While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:
(a)a proceeding in a court against the company or in relation to property of the company; or
(b)enforcement process in relation to such property;
except with the leave of the Court and in accordance with such terms (if any) as the Court imposes."
As with s440D(1), par(a) only applies to "a proceeding in a court" and possibly does not extend to proceedings before the Commission. However, the section does not apply to this case because the applicant, Watervale Pty Ltd, was not being wound up in insolvency or by the court.
The applicant relies on s500(2). Its provisions are set out earlier in these reasons. The section is in Pt5.5 of the Corporations Act, which deals with voluntary windings up, such as the one applying to the applicant. Unlike ss440D(1) and 471B, s500(2) does not by its terms concern only civil proceedings in a court. It appears to extend to civil proceedings generally, whether in a court or not. I have no hesitation in concluding that the matter before the Commissioner amounted to a civil proceeding.
Almost no assistance has been gained by me from a search for authorities. However, I note that in Rochford v Textile Clothing & Footwear Union of NSW (1998) 30 ACSR 38 at 55, Austin J, of the Supreme Court of New South Wales, held that for the purposes of s440D, the New South Wales Industrial Relations Commission, when hearing an industrial dispute concerning an allegation of unfair dismissal, as is basically the case here, was a court and was dealing with "a proceeding in a court". That conclusion is contrary to what the Commissioner held in Tata's case but, of course, the different legislation might justify a different conclusion.
Because the terms of s500(2) are different from those of ss440D(1) and 471B, particularly because they do not require the relevant proceedings to be in a court, I conclude that they may have a different application. In any event, because s500(2) does not in its terms require the relevant proceedings to be in a court, I hold that it does not as a matter of law require it. I add that I have come to that conclusion after some hesitation and without the assistance of argument in support of a different conclusion.
Therefore, I hold that the Commissioner had no jurisdiction to hear and determine Ms Manning's application without a Court, as that word is defined in the Corporations Act, s58AA, having first given leave under s500(2). There will be an order quashing the order of the first respondent made on 9 March 2005 in favour of Ms Manning against the applicant. If Ms Manning wishes to pursue her application to the Commission it will first be necessary for her to obtain the leave of a Court under s500(2) to enable her to do so.
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