Bosch v Project Constructions (Aust) Pty Ltd (No. 2) [2002] QIRC 4 (2002) 169 QGIG 105

25 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 87(4) – application for severance allowance Raymond Walter Bosch AND Project Constructions (Aust) Pty Ltd (No. 2) (No. B1619 of 2001) COMMISSIONER BLADES 15 January 2002 Severance allowance – Corporations Act 2001 – Leave to proceed not obtained – Application adjourned. DECISION It is disappointing that this application was not made on the previous occasion when the application under section 87 of the Industrial Relations Act 1999 for severance payments was before the Commission (168 QGIG 338). The respondent has now raised with the Commission the provisions of the Corporations Act 2001 (Commonwealth) and pointed out that the applicant has not sought leave of the Court to proceed as provided for in that Act. Section 471B of the Corporations Act 2001 provides:– “471B 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: -- 1 of 2 -- 106 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 25 January, 2002 (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.”. The word “court” means any court whereas the word “Court” has a more restricted meaning – vide s. 58AA of the Corporations Act 2001. A liquidator was appointed by the Supreme Court on 22 December 2000. Decisions of various Courts have been occupied with whether unfair dismissal proceedings under industrial relations laws fall within the phrase “a proceeding in a court” and whether an Industrial Commission can be classed as a “court” for the purposes of the section. In Brian Rochford Ltd (Administrator Appointed) v Textile Clothing & Footwear Union of NSW (unreported – Supreme Court of NSW Equity Division cor: Austin J), it was held that the Industrial Relations Commission of NSW was a court for the purposes of s. 440D of the Corporations Law and it mattered not that unfair dismissal proceedings may have involved an application for a mandatory order rather than monetary relief before those proceedings could be classified as a “proceeding” for the purposes of the section. Similar issues were also before the Western Australian Industrial Appeal Court in Helm v Hansley Holdings Pty Ltd (In Liq) (1999) WASCA 71 where the proceeding was again an unfair dismissal application and it was alleged that s. 471B of the Corporations Law, which is identical with s. 471B of the Corporations Act 2001, applied. Kennedy J, with whom the other members of the Court agreed, said:– “It would be an extraordinary result if the Corporations Law ... where it refers to a court, is not intended to include within that description the Western Australian Industrial Commission which the Parliament has constituted as a court of record.”. It should be noted that, by applying s. 9(9) of the Industrial Conciliation and Arbitration Act 1961, s.18 of the Industrial Relations Act 1990, s. 269 Workplace Relations Act 1997 and s. 255 of the Industrial Relations Act 1999, the Queensland Industrial Relations Commission is also a court of record. I am of the view that the Commission is therefore a “court” within the meaning of s. 471B of the Corporations Act. In the Brian Rochford case the word “proceeding” in s. 440D was held to have a “general undefined meaning” and in Helm, it was held that the word must have the same meaning in s. 471B. An order pursuant to s. 87 of the Industrial Relations Act 1999 for severance payments is an application for monetary relief, the same as can be in an application for unfair dismissal. I am of the view that the s. 87 application is a “proceeding” within the meaning of s. 471B of the Corporations Act 2001. It is also noted that Hall CC (as he then was) in Harrington v The Goodlife Company and Friends Pty Ltd (in liquidation) 155 QGIG 1124 held that leave of the Court was required before an unfair dismissal application could proceed. The applicant argued that the work he did was prior to the Company’s liquidation and that the Corporations Act should not apply. However, the section is clear when it provides “a person cannot begin or proceed with ...” (Emphasis added). Mr Bosch also referred to s. 320 of the Industrial Relations Act 1999 that the Commission is not bound by technicalities. Section 320 does not release the Commission from the obligation to apply rules of law – Qantas Airways v Gubbins (1992) 28 NSWLR 26. I order that the application for severance payments under s. 87 of the Industrial Relations Act 1999 be adjourned until the appropriate leave is obtained. I order accordingly. B.J BLADES, Commissioner. Released: 15 January 2002. Appearances:– Mr R.W. Bosch, on his own behalf. Ms J. Shaw, Solicitor, Deacons Lawyers, for the respondent. -- 2 of 2 --