Wulantuya Fnu v Australia Allied Early Intervention
[2024] FWCFB 397
•21 OCTOBER 2024
| [2024] FWCFB 397 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Wulantuya Fnu
v
Australia Allied Early Intervention
(C2024/5633)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 21 OCTOBER 2024 |
Appeal against decision [2024] FWC 1982 of Deputy President Bell at Melbourne on 26 July 2024 in matter number U2024/5927 – permission to appeal refused
Ms Wulantuya Fnu (Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Bell on 26 July 2024. The respondent to the appeal is Australian Allied Early Intervention Pty Ltd (Respondent).
For the reasons that follow, permission to appeal is refused.
Procedural context
The Appellant’s Notice of Appeal was filed on 16 August 2024. The Appellant sought an expedited hearing of the appeal, citing amongst other things, ongoing financial hardship caused by the dismissal. Directions were made for the filing of material in the appeal shortly thereafter and the matter was listed for hearing on the issue of permission to appeal on 9 October 2024. The parties were notified of the listing accordingly.
The Appellant filed written submissions in support of the appeal. No submissions were received from the Respondent.
The Appellant did not attend the hearing of the application for permission to appeal on 9 October 2024. Attempts were made to contact the Appellant on that day, but those attempts were unsuccessful. Mr Guo appeared for the Respondent at the hearing. Given the failure of the Appellant to attend the hearing, we advised Mr Guo that we did not require to hear submissions from the Respondent.
In the circumstances, we have decided to determine the application on the papers.
Decision under appeal
In his decision of 26 July 2024, the Deputy President noted that at the hearing of an application for an extension of time on 15 July 2024, he was made aware that the Respondent company had been deregistered on 30 June 2024. On the same day the Deputy President wrote to the parties advising that given the Respondent had been deregistered, the proceedings could not continue. Shortly thereafter the Appellant was advised by the Deputy President that in the absence of a discontinuance of the application by 24 July 2024, the proceeding would be dismissed on the basis that it had no reasonable prospects of success. The Appellant did not discontinue the application. The Deputy President proceeded to dismiss the application under s 587(1)(c) of the Fair Work Act2009 (Cth) (Act).
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under
s 400 is “a stringent one”.[1]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[2] The public interest is not satisfied simply by the identification of error or a preference for a different result.[3] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[4]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[5] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal
The four grounds of appeal advanced by the Appellant are as follows:
(i)Procedural fairness - The Respondent, Ziran Guo, maliciously dissolved the company, which directly impacted the procedural fairness of the dismissal. The process of dissolving the company was not transparent and seemed to be an attempt to avoid legal obligations.
(ii)Significant errors of fact - The Respondent transferred the directorship to his mother, yet the company continues to operate under the same business structure. This fact was not properly considered, leading to an erroneous conclusion about the legitimacy of the company’s dissolution.
(iii)Unfair dismissal - The Appellant was dismissed without proper notice, consultation, or justification. The circumstances surrounding the dismissal were not adequately reviewed, resulting in an unjust decision.
(iv)Evading legal responsibility - The Respondent’s actions demonstrate a clear attempt to evade legal responsibility, which should be considered when assessing the fairness of the dismissal and the ongoing operations of the company.
The Appellant also advanced three broad bases on which it was argued that the public interest was enlivened by the appeal. In summary, these were that granting permission to appeal would discourage the manipulation of corporate structures, promote the protection of workers’ rights and fair dismissal processes, and bolster public confidence in the Commission’s role in overseeing fair labour practices.
Consideration
As is apparent from the first appeal ground, the Appellant did not take issue with fact that the Respondent company had been deregistered or with the Deputy President’s central conclusion that in circumstances where a company has been deregistered, the application had no reasonable prospects of success. The complaint raised in the appeal ground goes entirely to the process by which the Respondent company was dissolved and the impact this had on the ‘procedural fairness of the dismissal’. The Deputy President came to a view that whatever else might be said about the circumstances of the Appellant’s dismissal, the deregistration of the company was fatal to the prospects of the Appellant’s case and the matter could proceed no further. We are unable to identify any error in that approach. Nor do we think that there is any basis to contend, as this appeal ground purports to do, that an arguable case of appealable error arises in the decision because of the way the Respondent was dissolved or the motivation behind that dissolution.
The second ground of appeal also addresses the legitimacy of the Respondent company’s dissolution. This was not a matter that the Deputy President addressed in his decision and nor was he required to do so. There is no significant error of fact, error in the decision-making process or erroneous conclusion about the legitimacy of the dissolution of the Respondent company. The second appeal ground is without substance.
The third and fourth appeal grounds go to an alleged failure of the Deputy President to review the circumstances surrounding the dismissal or to consider the Respondent’s ‘attempt to evade legal responsibility’. Self-evidently the Deputy President did not embark on a consideration of these matters because he had uncontested evidence before him that the Respondent company had ceased to exist,[6] and had formed the view that in the circumstances, there was no reasonable prospect that the application would succeed. A company comes into existence upon registration[7] and ceases to exist upon deregistration. Once deregistered, it no longer has any status as a legal entity and cannot sue or be sued in its own name. In RFZD v Commissioner for Taxation[8] the Federal Court of Australia recently observed that the authorities have been consistent in concluding that proceedings brought by or against a deregistered company cannot be maintained.[9] In that event, we are unable to discern any arguable error in the approach adopted by the Deputy President.
Conclusion
The matters raised by the Appellant do not demonstrate an arguable case of appealable error. Nor are we persuaded that the public interest is enlivened by the appeal. We would, in any event, refuse permission to appeal even if s 400 did not apply as we do not consider there is any discretionary basis upon which permission should be granted.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
No appearance for the appellant.
Z Guo, on behalf of the respondent.
Hearing details:
2024.
Sydney (by video link):
October 9.
[1] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43].
[2] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[3] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].
[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[5] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[6] See section 601AD(1) of the Corporations Act2001.
[7] Section 119 Corporations Act2001.
[8] [2023] FCA 324.
[9] Ibid at [10] per Feutrill J.
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