[7] I informed the parties that in light of the appointment of a liquidator, it would be necessary to stay the applications on account of the Commission being unable to further determine the applications without leave of the court. I advised the Applicants that if they wished to withdraw the applications if they do not intend on seeking leave of the court, they may consider doing so.

Fair Work Commission|2025-11-13

The applicant(s) and/or their representative were also in attendance on the day."

[7] I informed the parties that in light of the appointment of a liquidator, it would be necessary to stay the applications on account of the Commission being unable to further determine the applications without leave of the court. I advised the Applicants that if they wished to withdraw the applications if they do not intend on seeking leave of the court, they may consider doing so.

[8] Section 500(2) of the Corporations Act 2001 (the Corporations Act) provides:

"(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."

[9] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of 'court' and 'Court':

(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 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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts."

[10] In Smith & Ors v Trollop Silverwood & Beck Pty Ltd,[1] the Full Bench held that the Commission is not a "Court" and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act. Further, in Silalahi v CMI Industrial (Forge),[2] Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the Act falls within the meaning of "civil proceedings" in s.500(2) of the Corporations Act.

[11] Having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, in Wallis v Defence Electrical Pty Ltd,[3] I stayed the applicant's unfair dismissal application on account of the respondent having appointed a liquidator.

[12] Accordingly, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.

The Applicants' applications are stayed until leave of the Court is granted.

[2] [2012] FWA 7275, [11]-[16].

Printed by authority of the Commonwealth Government Printer

Leah Saul; Toni McNamara; Sally Riley & Annie Baartz v Craigslea Kindergarten & Preschool Association Incorporated [2025] FWC 3399 (13 November 2025)

Leah Saul; Toni McNamara; Sally Riley & Annie Baartz v Craigslea Kindergarten & Preschool Association Incorporated [2025] FWC 3399

At a glance

Court

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Judgment (17 paragraphs)

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Legislation Cited (2)

Cases Cited (2)

Leah Saul; Toni McNamara; Sally Riley & Annie Baartz v Craigslea Kindergarten & Preschool Association Incorporated [2025] FWC 3399 (13 November 2025)