AIRC is not a court


AIRC is not a court

A Full Bench of the AIRC has found that a liquidator’s argument based on the AIRC being a court was ill-founded.


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A Full Bench of the AIRC has found that a liquidator’s argument based on the AIRC being a court was ill-founded. 

The liquidator attempted to prevent the AIRC ruling on redundancy claims by some former employees of a company in liquidation.

The liquidator argued that s471B of the Corporations Act barred the workers from proceeding with their claim. That provision prevented a case being brought in any court while a company was being liquidated, unless the Federal Court or a State Supreme Court has given permission.

Federal Court decision

The Commission was found not to be a court within the definition of that term in s9 of the Corporations Act in the Federal Court in 'Australian Liquor, Hospitality and Miscellaneous Workers Union v Home Care Transport Pty Ltd' (2002 117 FCR 87 at 89-90).

In 'Home Care', Justice Merkel found that while the Commission, not being capable of being invested with the judicial power of the Commonwealth, was not a court as defined in s9 of the Corporations Act nevertheless, as provided for in s9, a contrary intention appears in s471B. That intention was that in s471B the term 'court' should include non-judicial bodies such as the Commission.

Full Bench of AIRC

The Full Bench disagreed with the Federal Court decision in respect of s471B and noted:

‘Since the Commission is primarily concerned with what rights there should be rather than with existing rights, the court could not supervise the exercise of the Commission's jurisdiction in the same way in which it might supervise the exercise of jurisdiction by a court.

'The Commission is required to take policy considerations into account in deciding what rights should exist whereas a court is not primarily concerned with such questions. If Commission proceedings were subject to the leave requirement, in exercising its discretion on the question of leave in a particular case, the relevant court may have to take into account considerations additional to those which might be relevant if leave were sought in relation to court proceedings. It is a truism that the relevant court could not itself exercise the Commission's jurisdiction and accordingly the nature of the supervision would be different on that account also.

'Because supervision of Commission proceedings would differ significantly from supervision of court proceedings, we think some specific indication would be required for an intention to appear that "court" should be given a meaning which differs from its defined meaning and which includes the Commission.

'We also think it is significant that the legislature has not included specific reference to the Commission and similar bodies. ...

'If the legislature had intended to make proceedings in the Commission subject to the leave requirement it could have done so by express provision. An example of such a provision may be found in s5 of the Suitors' Fund Act 1951 (NSW) which defines court in these words: "includes such tribunals or other bodies as are prescribed."

'Taking these considerations into account, we have concluded that the contrary intention does not appear and that "court" in s471B should be given its defined meaning. With respect to those who have held otherwise, in our view the purposive approach does not take the respondent the distance it needs to go.'

The appeal was upheld and the Commissioner's decision quashed.

See: G W Smith, R Ovcaric, D Hose and J Farragher v Trollope Silverwood & Beck Pty Ltd (In liquidation) - FB of AIRC - Guidice P, Ross VP and Whelan C - PR940508 (17 November 2003).





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