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[2014] WASC 413
General information, not legal advice.
Supreme Court of WA
2014-11-05
Mr J
Original judgment source is linked above.
1 MASTER SANDERSON: This was the plaintiff's application for leave to commence proceedings against the defendant. The plaintiff wished to take action against the defendant under the Occupational Safety and Health Act 1984 (WA) (the Act). It was of the view that leave under s 471B of the Corporations Act 2001 (Cth) was required before proceedings could be commenced. After hearing submissions on behalf of the plaintiff, I indicated leave would be granted. I said I would publish reasons for my decision. These are those reasons.
2 Section 471B of the Corporations Act is in the following terms:
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 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.
3 The purpose of the section is to preserve the limited assets of the company for the rateable distribution among potential claimants and to avoid a multiplicity of expensive and time consuming actions: see OgilvieGrant v East (1983) 7 ACLR 669, 672. A party who has a monetary claim against a company ought lodge a proof of debt and share rateably in the assets of the company.
4 This matter is different. The plaintiff wants to prosecute the company in relation to an accident which occurred on 1 December 2011. The circumstances of this accident are explained in an affidavit of Joseph Edward Attard sworn 9 October 2014. At the time, the defendant occupied premises in Bayswater. An employee of the defendant was assisting with unloading a delivery of stone slabs to the defendant's work premises. The employee was on the ground guiding a 220 kg stone slab, which was being transported by a forklift. As the stone slab was being placed on an Aframe rack, another stone slab from the adjacent Aframe rack fell on the employee. The employee was crushed between the two stone slabs and died.
5 Mr Attard says this was 'the fourth fatality, since 2007, arising out of this type of event, where a worker is crushed by large slabs or panels of materials used for manufacturing' (par 7 of his affidavit). Consequent upon investigations undertaken by the plaintiff, recommendations had been made to the defendant as to a safe system of work. It is the plaintiff's position those recommendations were not taken, there was not in place a safe system of work and the defendant was in breach of the Act.
6 Prior to issuing these proceedings, the plaintiff contacted the liquidator of the defendant. The liquidator wrote to the plaintiff and to the court saying while he had no objection to proceedings being issued, the defendant had no assets and would not be able to meet any pecuniary penalty levelled against it. He questioned the worth of issuing any proceedings.
7 During the course of his submissions I put to counsel the points made by the liquidator. He reiterated the points made in his written submissions. Essentially, he submitted it was of no interest to the plaintiff whether or not any pecuniary penalty which might be involved was actually paid. What was important was that the prosecution be initiated and if a contravention of the Act was proved, a conviction be recorded. In counsel's submission it was of significance that others in the same or similar industries appreciate if safety measures were not taken they would be liable to prosecution and substantial penalties would be imposed.
8 Counsel was not able to point to any case where leave had been granted in similar circumstances. It would seem, as counsel submitted, a prosecution could not be launched unless leave is given. In this case, the defendant is being wound up in insolvency. That was the basis upon which the Federal Court made the winding up order. Any proceedings which are commenced by the plaintiff would be commenced in the Magistrates Court. That court is picked up in the broad definition of 'court' found in s 58AA. The only real question is whether or not a prosecution (and that is what this would be) brought under the Act is a 'proceeding'. The term 'proceeding' is not defined in the Act. Nor is the term 'a prosecution' defined.
9 In my view, the terms of the section are clear and before the plaintiff can issue proceedings, leave must be granted. Despite the fact this is a rather odd situation, it seems to me proper the court should consider whether or not in the circumstances of the case the granting of leave is justified. In this case it clearly is. Based upon Mr Attard's affidavit there is a real prospect the defendant may have breached the Act. On that basis I granted leave to the plaintiff to proceed.
10 It should be added that under s 553B(1) of the Corporations Act any penalty imposed by a court is not provable in the insolvency. No creditor will suffer as a result of leave being granted.