s.394 - Unfair dismissal

Application for an unfair dismissal remedy - voluntary liquidation - dismissal under s.587(1)(c) at the Commission's initiative - application has no reasonable prospects of success.

• [1] On 3 April 2024, Mr Spencer Chisholm-Mills applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming True Flow Plumbing & Gas Pty Ltd as the Respondent.

• [2] On 23 May 2024, Ms Nicole Roche of Merchants Advisory sent correspondence to the Commission, stating:

"I confirm that on 10 May 2024 Louisa Sijabat of my office was appointed Liquidator of True Flow Plumbing & Gas Pty Ltd (In Liquidation) (the Company). A copy of the appointment document is attached for your reference.

I further confirm the Company was wound up voluntarily by the Company director and is considered a Creditors' Voluntary Liquidation (CVL) as per s491(1) of the Corporations Act 2001 (Cth).

Pursuant to s500(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'.

The initial report to creditors was sent to known creditors on 22 May 2024 (copy attached for your records). I note, Mr Spencer Chisholm-Mills is currently listed as a creditor in the liquidation and was sent a copy of the report via email."

• [3] On 24 May 2024, Mr Chisholm-Mills was advised in correspondence from the Commission of these developments. He was referred to s.500(2) of the Corporations Act 2001 which provides that "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." Mr Chisholm-Mills was advised that his application could not proceed unless he obtained leave of the Court and was asked to confirm by Friday, 7 June 2024, whether he intended to seek leave of the Court. No response was received from Mr Chisholm-Mills.

• [4] On 16 September 2024, Mr Chisholm-Mills was again advised in correspondence that he would need to make an application to the appropriate court to seek leave, and that the matter cannot proceed except by leave of the Court. The correspondence advised him that "no action can or will be taken by the Commission in relation to your unfair dismissal application unless you obtain leave of the court." On 18 June 2024, Deputy President Clancy stayed the matter.

• [5] On 13 March 2025, my Chambers sent correspondence to Mr Chisholm-Mills requesting that he provide an update on whether he had, or intended to seek, leave of the Court and advising that, if no response was received by 20 March 2025, his application may be dismissed. No response was received by 20 March and on 7 April 2025, my Chambers attempted to make two telephone calls to Mr Chisholm-Mills. The calls were not answered and there was no facility to leave voicemail messages.

• [6] It is well-established that the Commission is not a Court and is therefore unable to grant the leave required under s.500(2) of the Corporations Act.[1] I am also satisfied 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.[2] I am satisfied that Mr Chisholm-Mills' application cannot proceed any further with the Commission except by leave of the Court.

• [7] I consider it appropriate to dismiss the application pursuant to s.587(1)(c) of the Act. I do so on the basis that I consider the application has no reasonable prospects of success. Mr Chisholm-Mills has been on notice for an extended period of a significant obstacle that prevents him from continuing his case - the need to obtain leave of a Court under s.500(2) of the Corporations Act. He has made no contact with the Commission since lodging his Form F2 Application on 3 April 2024. Accordingly, I dismiss Mr Chisholm-Mills' application pursuant to s.587(1)(c) of the Act. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Spencer Chisholm-Mills on 3 April 2024, is dismissed.

[1] Smith v Trollope Silverwood & Beck Pty Ltd (2003) 142 IR 137.

[2] Silalahi v CMI Industrial (Forge) [2012] FWA 7275 at [11]- [16].

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