FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wilkie v Mobile Pipe Solutions Ltd [2025] FedCFamC2G 1160
File number: PEG 195 of 2025 Judgment of: JUDGE LADHAMS Date of judgment: 11 September 2025 Catchwords: CORPORATIONS LAW – application for leave to commence or continue proceedings pursuant to s 471B of the Corporation Act 2001 (Cth) – whether this Court has jurisdiction to grant leave pursuant to s 471B
INDUSTRIAL LAW – application alleging contravention of general protection provisions in Part 3-1 of the Fair Work Act 2009 (Cth).
Legislation: Corporations Act 2001 (Cth) ss 58AA, 440D, 471B, 500
Fair Work Act 2009 (Cth) ss 340, 342, 343, 357, 358, 359, 361, 368, 370, 566
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 134
Cases cited: Donnola v Silverleaf Constructions Co Pty Ltd (No 2) [2024] FedCFamC2G 577
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 4 June 2025 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Respondent: Mr A Dominish (liquidator of the respondent) ORDERS
PEG 195 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID WILKIE
Applicant
AND: MOBILE PIPE SOLUTIONS LTD
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicant is refused leave pursuant to s 471B of the Corporations Act 2001 (Cth) to commence or continue proceedings against the respondent in liquidation.
2.The originating application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By an application filed on 8 May 2025, Mr Wilkie alleges that Mobile Pipe Solutions Ltd (Mobile Pipe Solutions) contravened various provisions of the Fair Work Act 2009 (Cth) (Fair Work Act). Mobile Pipe Solutions was in administration at the time the application was filed and Mr Wilkie sought an order pursuant to s 440D of the Corporations Act 2001 (Cth) (Corporations Act) for leave of the Court to commence the proceeding against Mobile Pipe Solutions. Mobile Pipe Solutions has since gone into liquidation, and the parties agree that Mr Wilkie now needs leave to commence or continue the proceeding pursuant to s 471B of the Corporations Act. I treat the application as being for the grant of leave pursuant to s 471B.
Mobile Pipe Solutions challenges the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA Div 2) to grant leave to Mr Wilkie to commence proceedings under s 471B of the Corporations Act.…
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13. It does not follow from the fact that s 58AA of the Corporations Act confers exclusive jurisdiction on courts that do not include this Court in relation to matters that arise under the Corporations Act that s 134 of the FCFC Act would not apply to such matters if there is before this Court a matter that is associated with a matter that arises under the Corporations Act. Section 134 of the FCFC Act is premised on some other court or courts having jurisdiction over a matter in relation to which this Court does not have jurisdiction, which necessarily implies that, but for s 134 of the FCFC Act, the jurisdiction of the other court or courts over such matter would be exclusive of the jurisdiction of this Court.
14. The starting point in construing s 134 of the FCFC Act, therefore, is not construing provisions, such as s 58AA of the Corporations Act, that confer jurisdiction on courts other than this Court, and seeking to draw implications from those provisions. Section s 134 is a provision that confers jurisdiction. In Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, the High Court said that it “is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.
15. It is, of course, relevant to construe provisions that confer jurisdiction on a court in relation to a matter over which this Court does not have jurisdiction that is associated with a matter that falls within this Court’s jurisdiction to determine whether such provisions limit the operation of s 134 of the FCFC Act; but such provisions are to be construed having regard to the principle stated by the High Court in Shergold v Tanner that “a law of the Commonwealth is not to be interpreted as withdrawing or limiting the conferral of jurisdiction unless the implication appears clearly and unmistakably”. As was noted by the High Court in that case: That proposition reflects the general principles respecting implied repeal to which Gaudron J referred in Saraswati v The Queen. Her Honour said:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict).
16. The question, then, is: assuming Mr Donnola’s application for leave to proceed under s 500(2) of the Corporations Act is a matter that is associated with the matter that has arisen on his claiming relief under the FW Act, does s 58AA of the Corporations Act exclude s 134 of the FCFC Act from applying to an application under s 500(2) of the Corporations Act for leave to proceed against SCC? That question is to be answered in the negative. Section 58AA of the Corporations Act does nothing more than confer jurisdiction on courts that answer the description of “Court” and also in “courts” in relation to matters arising under the Corporations Act; and by doing so, it supplies an essential predicate to the operation of s 134 of the FCFC Act, namely, the identification of matters over which this Court does not have jurisdiction. Section 58AA does not expressly purport to limit the operation of provisions such as s 134 of the FCFC Act; and it cannot be said that it necessarily excludes the operation of s 134 to matters arising under the Corporations Act because, as I have already noted, s 58AA does nothing more than supply an essential predicate to the operation of s 134 of the FCFC Act.
17. For s 58AA of the Corporations Act to impliedly exclude the application of s 134 of the FCFC Act to matters arising under the Corporations Act, there must be something in the text of s 58AA, or in the statutory context in which s 58AA appears, that unmistakably manifests an intention that matters arising under the Corporations Act must not be dealt with as part of a single controversy that involves one or more other matters that is or are before a (federal) court that does not otherwise have jurisdiction in relation to a matter arising under the Corporations Act. No such intention is manifested, either by the text of s 58AA of the Corporations Act, or by the statutory context in which s 58AA appears.
DECISION NOT TO GRANT LEAVE
18. Having found that the FCFCOA Div 2 has jurisdiction to grant leave under s 471B of the Corporations Act, I turn to the question of whether leave should be granted in this matter. Leave should not be granted if it is not satisfied that there is an arguable case for leave. This is because the purpose of the requirement for leave is to prevent delay, expense and prejudice to other creditors. The absence of an arguable prima facie case weighs strongly against the grant of leave. Other matters considered on balance also weigh against the grant of leave. I acknowledge that some of Mr Wilkie’s claims could only be finally determined by a court (while others might be the subject of a proof of debt) and that it is important to protect employee rights. I also acknowledge the importance of this matter to Mr Wilkie. However, it is also important to consider the interests of other creditors and allowing the proceeding to commence or continue is likely to cause delay and cost which is likely to prejudice other creditors and the winding up process. The delay in Mr Wilkie taking action in relation to the dispute also weighs against the grant of leave.
Having refused to grant leave to Mr Wilkie to commence or continue the proceeding against Mobile Pipe Solutions, it is appropriate that I also dismiss the originating application.
Orders
Orders of the court
PEG 195 of 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
DAVID WILKIE
Applicant
AND:
MOBILE PIPE SOLUTIONS LTD
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 SEPTEMBER 2025
THE COURT ORDERS THAT:
1. The applicant is refused leave pursuant to s 471B of the Corporations Act 2001 (Cth) to commence or continue proceedings against the respondent in liquidation.
2. The originating application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
1.
By an application filed on 8 May 2025, Mr Wilkie alleges that Mobile Pipe Solutions Ltd (Mobile Pipe Solutions) contravened various provisions of the Fair Work Act 2009 (Cth) (Fair Work Act). Mobile Pipe Solutions was in administration at the time the application was filed and Mr Wilkie sought an order pursuant to s 440D of the Corporations Act 2001 (Cth) (Corporations Act) for leave of the Court to commence the proceeding against Mobile Pipe Solutions. Mobile Pipe Solutions has since gone into liquidation, and the parties agree that Mr Wilkie now needs leave to commence or continue the proceeding pursuant to s 471B of the Corporations Act. I treat the application as being for the grant of leave pursuant to s 471B.
2.
Mobile Pipe Solutions challenges the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA Div 2) to grant leave to Mr Wilkie to commence proceedings under s 471B of the Corporations Act. I raised with the parties the possibility of transferring this matter to the Federal Court, where no question of jurisdiction would arise. However, neither party wished for the matter to be transferred, and the matter has not been transferred.
3.
I therefore first need to address the jurisdiction of the FCFCOA Div 2. If I am satisfied that the FCFCOA Div 2 has jurisdiction to grant leave to commence or continue the proceeding under s 471B of the Corporations Act, I will then need to consider whether such leave should be granted in this matter.
THE REQUIREMENT FOR LEAVE UNDER S 471B OF THE CORPORATIONS ACT
4.
Section 471B of the Corporations Act provides:
Stay of proceedings and suspension of enforcement process
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 the 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.
5.
I accept, based on the affidavit of Aaron Joseph Dominish filed on behalf of Mobile Pipe Solutions on 29 May 2025, that Mobile Pipe Solutions is being wound up and Mr Dominish is one of three persons who has been appointed as liquidator.
6.
In these circumstances, as can be seen from the extract of s 471B above, Mr Wilkie requires leave of a ‘Court’ (with a capital C) to commence or continue a proceeding in a ‘court’ (with a lower case c).
DOES THE FCFCOA DIV 2 HAVE JURISDICTION TO GRANT LEAVE UNDER S 471B OF THE CORPORATIONS ACT?
The Corporations Act does not confer jurisdiction on the FCFCOA Div 2
7.
Section 58AA of the Corporations Act provides the following definitions 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 Federal Circuit and Family Court of Australia (Division 1);
(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 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.
8.
The FCFCOA Div 2 is not a ‘Court’ as defined in s 58AA of the Corporations Act and jurisdiction to grant leave under s 471B of the Corporations Act is not conferred on the FCFCOA Div 2 by the Corporations Act.
The FCFCOA Div 2 can consider the question of leave in the exercise of its associated jurisdiction
9.
However, the FCFCOA Div 2 has associated jurisdiction conferred by s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which provides:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
10.
In Donnola v Silverleaf Constructions Co Pty Ltd (No 2) [2024] FedCFamC2G 577 (Donnola), Judge Manousaridis considered whether the FCFCOA Div 2 had associated jurisdiction to grant leave to the applicant to continue a proceeding, pursuant to s 500(2) of the Corporations Act, which requires that after the passing of a 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’.
11.
Judge Manousaridis found that the FCFCOA Div 2 had associated jurisdiction, conferred by s 134 of the FCFCOA Act, to decide whether leave should be granted for the purposes of s 500(2) of the Corporations Act. His Honour’s reasoning was set out at [12]-[17] of Donnola, where his Honour said (footnotes omitted):
Does s 134 extend to an associated matter under the Corporations Act?
12. In Rolfe v Pinnacle ACT Pty Ltd Deputy Chief Judge Mercuri found there was doubt about whether this Court had jurisdiction under s 134 of the FCFC Act in relation to a matter arising under the Corporations Act. The doubt arose from the judgment of Finkelstein J in Ogawa v Federal Magistrate Phipps. In that case the question was whether this Court (then known as the Federal Magistrates Court) had jurisdiction under s 18 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act) (being the predecessor of s 134 of the FCFC Act) in relation to a matter based on a contravention of s 51AB of the Trade Practices Act 1974 (Cth) (the TPA) in circumstances where this Court did have jurisdiction in relation to a matter based on an alleged contravention of s 52(1) of the TPA. Finkelstein J held this Court did not have jurisdiction under s 18 of the FCC Act because s 86AA(4) of the TPA provided that the jurisdiction s 86(1) conferred on the Federal Court under Pt VI of the TPA was exclusive, subject to the jurisdiction s 86(1A) of the TPA conferred on this Court, which did not include claims based on contraventions of s 52AB. His Honour said:
I think the intent of this provision is clear. Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that mater [sic] has begun in the Federal Court. Moreover, it would subvert Parliament’s intention if one were to accept the University’s contention that s 18 of the
Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In these circumstances, as can be seen from the extract of s 471B above, Mr Wilkie requires leave of a ‘Court’ (with a capital C) to commence or continue a proceeding in a ‘court’ (with a lower case c). DOES THE FCFCOA DIV 2 HAVE JURISDICTION TO GRANT LEAVE UNDER S 471B OF THE CORPORATIONS ACT? The Corporations Act does not confer jurisdiction on the FCFCOA Div 2 Section 58AA of the Corporations Act provides the following definitions 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 Federal Circuit and Family Court of Australia (Division 1);(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 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. The FCFCOA Div 2 is not a ‘Court’ as defined in s 58AA of the Corporations Act and jurisdiction to grant leave under s 471B of the Corporations Act is not conferred on the FCFCOA Div 2 by the Corporations Act. The FCFCOA Div 2 can consider the question of leave in the exercise of its associated jurisdiction However, the FCFCOA Div 2 has associated jurisdiction conferred by s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which provides:To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked. In Donnola v Silverleaf Constructions Co Pty Ltd (No 2) [2024] FedCFamC2G 577 (Donnola), Judge Manousaridis considered whether the FCFCOA Div 2 had associated jurisdiction to grant leave to the applicant to continue a proceeding, pursuant to s 500(2) of the Corporations Act, which requires that after the passing of a 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’. Judge Manousaridis found that the FCFCOA Div 2 had associated jurisdiction, conferred by s 134 of the FCFCOA Act, to decide whether leave should be granted for the purposes of s 500(2) of the Corporations Act. His Honour’s reasoning was set out at [12]-[17] of Donnola, where his Honour said (footnotes omitted):Does s 134 extend to an associated matter under the Corporations Act?12.In Rolfe v Pinnacle ACT Pty Ltd Deputy Chief Judge Mercuri found there was doubt about whether this Court had jurisdiction under s 134 of the FCFC Act in relation to a matter arising under the Corporations Act. The doubt arose from the judgment of Finkelstein J in Ogawa v Federal Magistrate Phipps. In that case the question was whether this Court (then known as the Federal Magistrates Court) had jurisdiction under s 18 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act) (being the predecessor of s 134 of the FCFC Act) in relation to a matter based on a contravention of s 51AB of the Trade Practices Act 1974 (Cth) (the TPA) in circumstances where this Court did have jurisdiction in relation to a matter based on an alleged contravention of s 52(1) of the TPA. Finkelstein J held this Court did not have jurisdiction under s 18 of the FCC Act because s 86AA(4) of the TPA provided that the jurisdiction s 86(1) conferred on the Federal Court under Pt VI of the TPA was exclusive, subject to the jurisdiction s 86(1A) of the TPA conferred on this Court, which did not include claims based on contraventions of s 52AB. His Honour said:I think the intent of this provision is clear. Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that mater [sic] has begun in the Federal Court. Moreover, it would subvert Parliament’s intention if one were to accept the University’s contention that s 18 of the Federal Magistrates Court Act (the “associated jurisdiction” provision) has the effect of giving to the Federal Magistrates Court jurisdiction over a federal claim that is within the exclusive jurisdiction of the Federal Court. In my view whatever claims may be picked up as part of the Federal Magistrates Court’s associated jurisdiction they do not include claims that are within the exclusive jurisdiction of another federal court.13.It does not follow from the fact that s 58AA of the Corporations Act confers exclusive jurisdiction on courts that do not include this Court in relation to matters that arise under the Corporations Act that s 134 of the FCFC Act would not apply to such matters if there is before this Court a matter that is associated with a matter that arises under the Corporations Act. Section 134 of the FCFC Act is premised on some other court or courts having jurisdiction over a matter in relation to which this Court does not have jurisdiction, which necessarily implies that, but for s 134 of the FCFC Act, the jurisdiction of the other court or courts over such matter would be exclusive of the jurisdiction of this Court.14.The starting point in construing s 134 of the FCFC Act, therefore, is not construing provisions, such as s 86AA(4) of the TPA or s 58AA of the Corporations Act, that confer jurisdiction on courts other than this Court, and seeking to draw implications from those provisions. The starting point is the text of s 134 of the FCFC Act, and the principles of construction that apply to such provisions. Section s 134 is a provision that confers jurisdiction. In Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, the High Court said that it “is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.15.It is, of course, relevant to construe provisions that confer jurisdiction on a court in relation to a matter over which this Court does not have jurisdiction that is associated with a matter that falls within this Court’s jurisdiction to determine whether such provisions limit the operation of s 134 of the FCFC Act; but such provisions are to be construed having regard to the principle stated by the High Court in Shergold v Tanner that “a law of the Commonwealth is not to be interpreted as withdrawing or limiting the conferral of jurisdiction unless the implication appears clearly and unmistakably”. As was noted by the High Court in that case:That proposition reflects the general principles respecting implied repeal to which Gaudron J referred in Saraswati v The Queen. Her Honour said:It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict).16.The question, then, is: assuming Mr Donnola’s application for leave to proceed under s 500(2) of the Corporations Act is a matter that is associated with the matter that has arisen on his claiming relief under the FW Act, does s 58AA of the Corporations Act exclude s 134 of the FCFC Act from applying to an application under s 500(2) of the Corporations Act for leave to proceed against SCC? That question is to be answered in the negative. Section 58AA of the Corporations Act does nothing more than confer jurisdiction on courts that answer the description of “Court” and also in “courts” in relation to matters arising under the Corporations Act; and by doing so, it supplies an essential predicate to the operation of s 134 of the FCFC Act, namely, the identification of matters over which this Court does not have jurisdiction. Section 58AA does not expressly purport to limit the operation of provisions such as s 134 of the FCFC Act; and it cannot be said that it necessarily excludes the operation of s 134 to matters arising under the Corporations Act because, as I have already noted, s 58AA does nothing more than supply an essential predicate to the operation of s 134 of the FCFC Act.17.For s 58AA of the Corporations Act to impliedly exclude the application of s 134 of the FCFC Act to matters arising under the Corporations Act, there must be something in the text of s 58AA, or in the statutory context in which s 58AA appears, that unmistakably manifests an intention that matters arising under the Corporations Act must not be dealt with as part of a single controversy that involves one or more other matters that is or are before a (federal) court that does not otherwise have jurisdiction in relation to a matter arising under the Corporations Act. No such intention is manifested, either by the text of s 58AA of the Corporations Act, or by the statutory context in which s 58AA appears.