Wilkie v Mobile Pipe Solutions Ltd
[2025] FedCFamC2G 1160
•11 September 2025
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
Shorey v One Key Workforce Pty Ltd (in liq) [2020] FCA 1750
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. 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.
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
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.
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.
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.
When the application for leave first came before me for hearing, I drew to the parties’ attention the judgment in Donnola and adjourned the hearing, amongst other reasons, to allow the parties to consider the reasoning in Donnola and file further written submissions.
Mr Wilkie did not address Donnola in his further written submissions. In his oral submissions, Mr Wilkie relevantly submitted that the FCFCOA Div 2 exercises federal jurisdiction and ‘there is no explicit exclusion after considering the interlocutory or procedural matters relating to corporate insolvency where it has jurisdiction over the subject matter’. Mr Wilkie submitted that the procedural step of seeking leave under s 471B of the Corporations Act is incidental and necessary to the core jurisdiction of the FCFCOA Div 2 under the Fair Work Act.
Mobile Pipe Solutions sought to distinguish Donnola on the basis that Judge Manousaridis there found that the FCFCOA Div 2 had associated jurisdiction to determine the question of leave after it had already given judgment in relation to liability in favour of the applicant (with penalty still to be determined). Mobile Pipe Solutions submitted that the present proceeding is still in its preliminary stages, and the matters within the FCFCOA Div 2’s jurisdiction under the Fair Work Act are not yet invoked because there has not been any grant of leave under s 471B of the Corporations Act. The gist of submission, as I understand it, is that:
(a)Mr Wilkie’s claims under the Fair Work Act are not yet before the FCFCOA Div 2, because, pursuant to s 471B of the Corporations Act, the applicant cannot commence or continue the proceeding unless a Court grants leave;
(b)because the Fair Work claims are not yet properly before the FCFCOA Div 2, there is no matter pending in the FCFCOA Div 2’s original jurisdiction; and
(c)therefore the FCFCOA Div 2 cannot exercise associated jurisdiction to determine whether to grant leave to Mr Wilkie to commence or continue the proceeding under s 471B of the Corporations Act.
Mobile Pipe Solutions has not cited any authority in support of its submission.
Neither party has submitted that Donnola is wrongly decided. As a matter of comity, it is appropriate that I follow Donnola unless I consider it to be plainly wrong or distinguishable. I do not consider Donnola to be plainly wrong. Further, I do not accept that Donnola is distinguishable on the basis asserted by Mobile Pipe Solutions.
Section 471B of the Corporations Act operates as a stay. Section 134 of the FCFCOA Act can confer jurisdiction on the FCFCOA Div 2 when a matter not otherwise within the FCFCOA Div 2’s jurisdiction is associated with matters in which the jurisdiction of the FCFCOA Div 2 is invoked. To the extent that the Fair Work Act confers jurisdiction on the FCFCOA Div 2 to determine the issues that arise in the proceeding, the jurisdiction of the FCFCOA Div 2 is invoked. This is the case even if Mr Wilkie needs leave to commence the proceeding because of the operation of s 471B of the Corporations Act (or s 440D, taking into account that the company was still in administration when the application was filed).
The FCFCOA Div 2 has jurisdiction, conferred by s 566 of the Fair Work Act, in relation to at least some of the causes of action raised by Mr Wilkie. I am satisfied, following Donnola and for the reasons given, that the FCFCOA Div 2 has associated jurisdiction to consider the question of leave under s 471B of the Corporations Act.
SHOULD MR WILKIE BE GRANTED LEAVE TO COMMENCE THE PROCEEDING?
A grant of leave under s 471B of the Corporations Act is discretionary: Shorey v One Key Workforce Pty Ltd (in liq) [2020] FCA 1750 (Shorey) at [35].
Does Mr Wilkie have a prima facie case?
In addressing whether to grant leave, it is appropriate to consider whether Mr Wilkie has a prima facie case.
Mr Wilkie’s articulation of his case
Mr Wilkie’s proposed cause of action is set out in a Form 4 – Claim under the Fair Work Act 2009 alleging contravention of a general protection filed on 8 May 2025 and a Statement of Claim filed on 10 May 2025. Mr Wilkie also relies on an affidavit sworn by him on 29 April 2025 and filed on 8 May 2025.
In the Form 4, Mr Wilkie alleged:
1)The respondent (company) contravened the Fair Work Act, in order to terminate the applicant in order to bypass the applicant’s rights and employment benefits.
2) The Respondent contravened
i) s 340 (adverse action- injury and prejudice in employment
ii) s 343 (Coercion) and
iii) ss 357-359 (Sham contracting)
3)Misrepresentation – s 357 Respondent knowingly represented to the applicant that his employment was an independent contracting arrangement
4)Dismiss and re-engagement proposal s358 Respondent attempted to end the employment and re-engage the applicant on a contract basis to do the same work.
5)Coercion and undue influence ss343 and 359: the respondent threatened non-payment of accrued entitlements unless the applicant signed a deed of release and an employment contract as a contractor (agreement for the provision of technical services).
6)Adverse action s 340 Respondent injured the applicant in his employment and altered his position to his prejudice after he made complaints about unpaid wages and superannuation (tried to exercise his workplace rights)
Although the Form 4 purports to articulate various contraventions of the Fair Work Act, the factual basis of the alleged contraventions is not sufficiently articulated to enable me to meaningfully identify the factual basis for the proposed cause(s) of action. The Form 4, of itself, does not show that Mr Wilkie has a prima facie case.
Mr Wilkie’s Statement of Claim is, with respect, difficult to follow. In assessing whether the Statement of Claim discloses an arguable cause of action, I have had regard to the limited evidence before me to assist me to better understand the Statement of Claim. However, I am mindful that neither party has been required to file evidence in relation to the issues raised in the Statement of Claim, and the evidence before me is necessarily incomplete. I refer to it only to understand the causes of action alleged.
Mr Wilkie claims to have been formerly engaged by Mobile Pipe Solutions on a full-time basis from 2008 until September 2021, serving in roles that included Chief Technology Officer (CTO), Managing Director and Director. In his affidavit filed on 8 May 2025, he deposed that he founded Polyline Piping Systems Pty Ltd in 2008 and that company has now become Mobile Pipe Solutions.
Mr Wilkie alleges that, in substance, his work conditions and responsibilities were consistent with that of an employee, rather than an independent contractor, because he had a company email address and access to the company’s server and internal systems, he was provided with equipment, a vehicle, business cards and uniforms and he accrued leave entitlements and participated in the company’s management and operations. He alleges in his Statement of Claim that from 2008 to 2018 he was paid a salary as an employee, but in or around 2019, formal salary payments ceased due to cash flow issues. Mr Wilkie alleges that he raised this issue (although he does not identify who he raised it with, when or how he raised it), and was told to invoice the company for his accumulated unpaid salary, which he did between 2019 and 2021.
Mr Wilkie provided more information about this in his affidavit. Mr Wilkie deposed that just prior to 2019, the board of Mobile Pipe Solutions decided that all board members’ employment remuneration would be changed so that an agreed portion of salary would be accrued for later payment. When the company’s cash flow deteriorated further in 2019, Mr Wilkie decided to suspend his salary to restructure the company for listing on the ASX. He deposed that on or about 15 July 2019, he approached the other directors of the company to discuss possible personal bankruptcy and how to protect the company should he become bankrupt. Mr Wilkie deposed that he agreed with a suggestion to resign his position as Managing Director, but continue employment at as CTO to manage technical operations. Mr Wilkie deposed that Mobile Pipe Solutions ceased paying him superannuation from 15 July 2019, and after 15 July 2019 he continued his employment duties in the position of CTO and submitted invoices to the company.
There is limited meaningful information pleaded (or deposed to) about the terms of Mr Wilkie’s engagement as CTO and whether or not there was any written contract. I understand, based in part on his oral submissions at the hearing, that he alleges that there was no written contract entered into after he resigned his position as Managing Director in July 2019.
Mr Wilkie alleges in his Statement of Claim that on or around 5 August 2021 he ‘raised further concerns with the then CFO regarding the Company’s abnormally extended cease of financial remuneration for approximately 2 years’ to him. He alleges that this constituted the exercise a workplace right because it was a complaint or inquiry in relation to his employment.
Mr Wilkie then alleges that Mobile Pipe Solutions presented him with two proposed agreements that he refused to sign:
(a)on 27 August 2021 Mobile Pipe Solutions presented Mr Wilkie with a proposed Deed of Settlement and Release (proposed Deed), which offered to resolve the payment of some entitlements by making a monetary payment and share transfer to Mr Wilkie; and
(b)on 22 September 2021 Mobile Pipe Solutions presented Mr Wilkie with a proposed Agreement for the Provision of Technical Services (proposed Agreement).
Mr Wilkie claims that he refused to sign these documents as they required him to relinquish any claim to have been an employee (although not pleaded, the proposed Deed shows that this related to a defined period after Mr Wilkie resigned as Managing Director), and to be reengaged as an independent contractor.
On 22 September 2021 Mobile Pipe Solutions terminated Mr Wilkie’s engagement with the company.
Mr Wilkie alleges that the Mobile Pipe Solutions contravened:
(a)s 340 of the Fair Work Act:
(i)because his ‘termination and related actions’ amounted to unlawful adverse action because he was dismissed from his employment or prejudiced for exercising a workplace right; and
(ii)by injuring him in his employment and altering his position to his prejudice after he made complaints about unpaid wages and superannuation;
(b)s 357 of the Fair Work Act, by knowingly representing to him that his employment was an independent contracting arrangement;
(c)s 358 of the Fair Work Act, by attempting to end his employment and reengage him on a contractor basis to do substantially the same work; and
(d)ss 343 and 359 of the Fair Work Act by threatening non-payment of accrued entitlements unless Mr Wilkie signed the proposed Deed which redefined his employment relationship with Mobile Pipe Solutions as a contractor.
Assessment of whether Mr Wilkie has raised a prima facie case
Mr Wilkie’s case is pleaded on the basis that he was, at the time of the relevant events, an employee of Mobile Pipe Solutions. I consider whether he has a reasonably arguable case on that basis, without expressing any view on whether Mr Wilkie would be likely to establish that he was an employee.
The alleged contravention of s 340 of the Fair Work Act
Mr Wilkie’s claim that Mobile Pipe Solutions contravened s 340 of the Fair Work Act suffers from a fundamental problem. The adverse action pleaded is ‘termination and related actions’. However, Mr Wilkie does not have a certificate issued under s 368 of the Fair Work Act. If Mr Wilkie was dismissed from employment and alleges that he was dismissed in contravention of Part 3-1 of the Fair Work Act, he was entitled to apply to the Fair Work Commission to deal with the dispute. Pursuant to s 370 of the Fair Work Act, he is not entitled to make a general protections court application in relation to the dispute unless the Fair Work Commission issued a certificate under s 368(3) of the Fair Work Act. Insofar as the alleged contravention of s 340 relates to his alleged dismissal, it cannot be brought in this Court.
While there is no other allegation of s 340 pleaded, in oral submissions, Mr Wilkie said that Mobile Pipe Solutions did not pay him unpaid wages, superannuation or holiday entitlements, save for two weeks’ holiday. The adverse action he alleged was ‘effectively misrepresenting the whole situation’. This, if pleaded, would not amount to a prima facie contravention of s 340 of the Fair Work Act. Mr Wilkie has alleged in his statement of claim that he exercised a workplace right, but it is unclear how ‘effectively misrepresenting the whole situation’ would fall within the definition of ‘adverse action’ in s 342 of the Fair Work Act, and there is no assertion as to the reason for the employer taking that action.
The alleged contravention of s 357 of the Fair Work Act
Section 357(1) of the Fair Work Act provides that a person who employs or proposes to employ an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed is a contract for services under which the individual performs, or would perform, work as an independent contractor. The subsection does not apply if the employer proves that, when the representation was made, the employer reasonably believed that the contract was a contract for services: s 357(2) of the Fair Work Act.
Mr Wilkie has alleged that Mobile Pipe Solutions contravened s 357 by knowingly representing to him that his employment was an independent contracting arrangement. He has not clearly identified who is alleged to have made the representation and when it was made, and the aspect of his employment to which the representation allegedly relates is also unclear.
Mr Wilkie confirmed in oral submissions that the allegation relates to Mobile Pipe Solutions presenting the proposed Deed to Mr Wilkie in August 2021. The proposed Deed contains a clause that Mr Wilkie acknowledged and agreed that he was engaged as an independent contractor from 17 August 2018 to the date of the Deed. Mr Wilkie submitted, in response to my questions to try and understand his case, that the representation was made by Ian Dorrington, the Managing Director at the time, in ‘two letters’, being the proposed Deed and the proposed Agreement, and that Mr Wilkie viewed this as extortion.
The height of the pleading is that Mr Wilkie was presented with the proposed Deed and refused to sign it because he viewed it as ‘an attempt to settle his claims cheaply and re-label his working arrangement’. There is insufficient detail in the Statement of Claim for me to be satisfied that Mr Wilkie has raised a prima facie case in relation to the alleged contravention of s 357 of the Fair Work Act. Even if he had pleaded the additional details that he provided at the hearing, there is still insufficient detail for me to be satisfied that he has raised a prima facie case.
The alleged contravention of s 358 of the Fair Work Act
The next alleged contravention is that Mobile Pipe Solutions contravened s 358 of the Fair Work Act by attempting to end Mr Wilkie’s employment and reengage him on a contractor basis to do substantially the same work. Section 358 of the Fair Work Act provides that an employer must not dismiss an individual who is an employee of the employer and performs particular work, in order to engage the individual to perform the same, or substantially the same, work under a contract for services.
While it is again unclear from the pleading, I proceed on the assumption that this allegation relates to the proposed Agreement that Mobile Pipe Solutions gave to Mr Wilkie in August or September 2021. However, Mr Wilkie has not pleaded essential elements of the cause of action. If he relies on the actual termination of his engagement in 22 September 2021, then proceeding on Mr Wilkie’s case that he was an ‘employee’, this would appear to be a dismissal dispute that cannot be brought without a certificate issued under s 368 of the Fair Work Act. If Mr Wilkie purports to characterise the proposed Deed, together with the proposed Agreement, as a ‘threat’ to dismiss him, this is not clear from the pleading, and there is again no detail as to the human actor that made the alleged threat, how and when the threat was made. There is also no clear pleading as to the work that Mr Wilkie was performing immediately prior to the termination of his engagement and the work that he would be required to perform under the proposed Agreement. In the absence of any such detail, Mr Wilkie has not satisfied me that he has a prima facie case.
The alleged contraventions of ss 343 and 359 of the Fair Work Act
The final allegation is that Mobile Pipe Solutions contravened ss 343 and 359 of the Fair Work Act by threatening non-payment of accrued entitlements unless Mr Wilkie signed the proposed Deed which redefined his employment relationship with Mobile Pipe Solutions as a contractor.
Section 343 provides that a person must not organise or take, or threaten to organise or take, action against another person with intent to coerce the person to exercise, or not exercise, a workplace right, or to exercise or not exercise a workplace right in a particular way.
Again, the material facts relied on to establish the essential elements of the cause of action are not clear from the Statement of Claim. Mr Wilkie has pleaded that Mobile Pipe Solutions provided him with the proposed Deed to resolve outstanding issues. He has not identified who allegedly organised, took or threatened to organise or take action against him and he has not pleaded the basis on which he says there was intent to coerce him in relation to the exercise or non-exercise of his workplace rights. Nor has he identified the particular workplace right or rights the subject of the allegation.
Section 359 provides that an employer who employs, or who at any time has employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same or substantially the same work for the employer.
Mr Wilkie has not identified in the Statement of Claim, for the purposes of the alleged contravention of s 359, who made a statement, what the statement was, why the statement was false, the basis on which the person who made the statement knew it was false, and why he says it was intended to persuade or influence him to enter a contract for services to perform substantially the same work. Absent these details, I cannot be satisfied that Mr Wilke has a prima facie case.
Conclusion in relation to whether Mr Wilkie has articulated a prima facie case
Based on the way in which Mr Wilkie has articulated his case, I cannot be satisfied that he has a prima facie case. This weighs against the grant of leave to commence or continue proceedings under s 471B of the Corporations Act.
Is it appropriate to grant leave to commence or continue the proceeding, rather than require Mr Wilkie to submit a proof of debt to the liquidator?
There are a range of other matters that can be relevant to consider, which go to the question of whether it is appropriate to grant leave to commence or continue the proceeding against Mobile Pipe Solutions.
The following matters have been raised by the parties in their submissions:
(a)whether the issues raised by Mr Wilkie can be determined by the liquidators if Mr Wilkie submits a proof of debt, or whether they can only be determined by a court;
(b)any prejudice to the liquidation process or Mobile Pipe Solutions’ other creditors;
(c)the complexity of the issues;
(d)whether Mr Wilkie has acted promptly in bringing his claim;
(e)the interests of justice;
(f)the merit of the claim; and
(g)the stage of any liquidation or administration.
Whether the issues raised by Mr Wilkie can be determined by the liquidators, or whether they can only be determined by a court
Mr Wilkie submitted that his case involves important questions of statutory rights and potential civil penalties, which cannot be determined by the liquidators.
Mobile Pipe Solutions submitted that Mr Wilkie can submit a formal proof of debt or claim to the liquidators.
There are certainly aspects of Mr Wilkie’s claims that can be submitted to the liquidators. He claims that he has not been paid amounts that were agreed, although the relief he claims appears to extend beyond the pleaded causes of action. However, I acknowledge that there is relief sought by Mr Wilkie that can only be granted by a court, including penalties for any established contraventions of civil penalty provisions of the Fair Work Act and some aspects of the damages he seeks. Any conclusive determination of whether Mr Wilkie was an employee or an independent contractor is also one that is for a court to make. Such a determination may impact Mr Wilkie’s entitlements, including in relation to superannuation and leave entitlements, although I acknowledge that a claim for those entitlements is not clearly pleaded with any degree of specificity.
In the absence of clear particulars of claimed damages and outstanding entitlements, I am unable to ascertain the proportion of Mr Wilkie’s claim that could be the subject of a proof to debt to the liquidators.
Any prejudice to the liquidation process or the other creditors of the company
Mr Wilkie submitted that allowing this proceeding to go ahead will not unfairly prejudice the company’s other creditors or the liquidation. He submitted that he is prepared to agree that any judgment could only be enforced with the leave of a court, to avoid disrupting the liquidation. In his oral submissions, he submitted that he does not seek to disrupt or delay liquidation and the orders he seeks do not affect the secured creditors. If he is successful, he would be an unsecured creditor.
He submitted that the liquidators can choose not to take a role in the proceeding, and there may be insurance that may address some of the claims.
Mobile Pipe Solutions submitted that the company has limited funding and is unable to engage a lawyer in this proceeding. Mobile Pipe Solutions submitted (by its liquidator) that it did not appear to hold any relevant insurance policies which would cover a compensation claim.
While both parties have made submissions on these issues, there is little evidence before me and I am therefore limited in the findings I can make.
I accept that if Mr Wilkie is granted leave to bring the proceeding and is successful in the substantive proceeding, he would be an unsecured creditor in relation to any damages he is awarded.
Even if leave were to be granted, the proceeding before the Court is in its very early stages. It can be inferred that it would take some time to progress to a resolution. While Mr Wilkie has submitted that the company could choose not to participate in the litigation, there is no evidence to suggest that the company would not participate. It would be risky for Mobile Pipe Solutions not to participate in proceedings, especially when one has regard to the reverse onus that may arise by operation of s 361 of the Fair Work Act. The likely time and cost of defending the litigation is likely to have an adverse impact on creditors.
There is no specific evidence before me about the financial resources of Mobile Pipe Solutions, although both parties have proceeded on the basis that the company has limited financial resources. That is consistent with the company being wound up in insolvency. I have no evidence about whether or not the company has insurance, and the suggestion by Mr Wilkie that the company ‘may’ have insurance is entirely speculative and does not establish that there is any relevant insurance. As the Federal Court explained in Shorey at [35], it is appropriate to consider whether a company has funds available to defend the litigation and whether the company is insured against the liability that is the subject of the proceeding, as usually there is no utility in allowing a proceeding to be brought against a company in liquidation if it has no funds and no insurance. I cannot be satisfied in the present case that Mobile Pipe Solutions has the financial capacity to defend the litigation or any insurance in relation to the subject matter of the proceeding.
The complexity of the issues
Mr Wilkie submitted that the factual aspects of this matter are self-contained, because they focus on his employment, and the legal issues are straightforward under the Fair Work Act. I do not agree. Matters arising under the Fair Work Act can be complicated. I have identified above that Mr Wilkie has not raised a prima facie case on the documents he has provided to the FCFCOA Div 2. Even if I am wrong in that finding, and there are some causes of action that are arguable, the pleading at present is unclear and that has the potential to further complicate the proceeding. This may result in interlocutory disputes relating to pleadings, or it may result in Mobile Pipe Solutions making guesses about the case it has to meet, which may increase the cost of defending the proceeding.
Whether Mr Wilkie has acted promptly in bringing his claim
Mr Wilkie submitted that he brought the matter to the Fair Work Commission promptly, but the Fair Work Commission could not proceed without the consent of Mobile Pipe Solutions, which was in administration at the time. The Fair Work Commission advised the applicant on 11 April 2025 that it closed the file without issuing a certificate and he then commenced this proceeding.
Mr Wilkie may have brought the proceeding in the FCFCOA Div 2 promptly after the Fair Work Commission closed its file. However, I have significant concerns about the overall delay in Mr Wilkie taking action.
The relevant events the subject of the dispute occurred in 2021. Mr Wilkie did not raise the matter with the Fair Work Commission until early 2025, when the company went into administration, almost three and a half years after the relevant events. While Mr Wilkie has annexed to his affidavit some emails that he sent in September and October 2021 relating to his outstanding issues with Mobile Pipe Solutions, he has not demonstrated any action taken in respect of the issues the subject of the dispute between October 2021 and February 2025. Mr Wilkie referred to some health issues in his oral submissions, but those issues are not supported by evidence and do not explain the lengthy delay between the events the subject of the claim and filing the proceeding in the FCFCOA Div 2.
The interests of justice
Mr Wilkie submitted that the interests of justice strongly favour allowing an employee’s statutory rights claim to be heard. The claim is fundamentally about workplace protections.
While I acknowledge the importance of protecting employee rights, this is just one consideration and is outweighed in the present case by other considerations.
The merit of the claim
Mr Wilkie submitted that the claim has strong merit and involves significant sums. He is seeking over $700,000 in entitlements and penalties.
I have expressed concerns above about the lack of clarity in Mr Wilkie’s case alleging contraventions of the Fair Work Act and I have formed the view that, as presently articulated, it does not disclose a prima facie case. I cannot find that the claim, on its face, has a strong prospect of success.
That view has been formed on the premise that Mr Wilkie alleges that he was always an employee of the company. I have insufficient information before me and insufficient detail in the pleading to express any informed view about the prospect of Mr Wilkie establishing that he was an employee in the period from August 2019 to September 2021. I do, however, acknowledge that if Mr Wilkie were able to show that he was an employee, there may be statutory rights that flow from that finding, including the right to wages, superannuation and leave entitlements, even if they are not properly pleaded.
The stage of any liquidation or administration
Mr Wilkie initially submitted that the administration is in its early stages. Shortly after making that submission, the company went into liquidation.
As noted above, granting leave for the proceeding to commence or continue would result in delay. The delay is likely to impact the progress of the winding up process.
CONCLUSION IN RELATION TO LEAVE
Taking into account all the relevant factors, I have decided not to grant leave, pursuant to s 471B of the Corporations Act, to Mr Wilkie to commence or continue the proceeding against Mobile Pipe Solutions.
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.
OTHER MATTERS
I acknowledge that I raised with the parties the possibility of transferring the matter to the Federal Court. In circumstances where neither party wished for the matter to be transferred and I formed the view that the FCFCOA Div 2 has associated jurisdiction to consider whether leave should be given to Mr Wilkie, pursuant to s 471B of the Fair Work Act, to commence or continue the proceeding, it has been unnecessary to address the parties’ submissions on whether the proceeding should be transferred. I nevertheless thank the parties for their submissions addressing the possibility of transfer.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 September 2025
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