FEDERAL COURT OF AUSTRALIA
In the matter of Ansett Australia Limited (ACN 004 209 410) & Ors (All Administrators Appointed) and Mentha & Korda (As Administrators)
V 3083 of 2001
GOLDBERG J
14 DECEMBER 2001
MELBOURNE
SUMMARY
1. In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be published later and will be available on the internet at www.fedcourt.gov.au, together with this summary.
2. The administrators of the companies in the Ansett group have sought orders and directions from the Court that:
· payments made to the administrators pursuant to the Determination made by the Minister for Employment and Workplace Relations under the Air Passenger Ticket Levy (Collection) Act 2001 (Cth), to be used to pay entitlements to employees of the Ansett group, are debts incurred by the administrators in the performance and exercise of their functions and powers as administrators of each of the companies in the Ansett group for services rendered;
· the administrators may execute and give effect to a deed proposed to be entered into between the administrators and the Commonwealth of Australia containing certain provisions relating to the repayment of those debts, the limitation of the personal liability of the administrators to repay the debts and the priority to be given to the repayment of the debts.
3. The application in this proceeding was filed in the Court on Monday 3 December 2001. It came on for hearing as a matter of urgency on Wednesday 5 December 2001. After hearing submissions from the administrators, the Australian Council of Trade Unions and other unions and the Commonwealth of Australia, I was not satisfied that sufficient notice of the nature of the application had been given to all unsecured creditors of the Ansett group. Accordingly, I directed that notice of the application be published in the media so that all interested parties might be notified of the opportunity to participate in the hearing if they wished. Those notices were published on Saturday 8 December 2001.
4. The adjourned hearing was resumed on Tuesday 11 December 2001 at which time a further appearance was announced on behalf of the trustees of four superannuation funds whose members are or were employees of the Ansett group. The hearing concluded that day, but I reconvened the hearing yesterday for the purpose of raising issues with the parties which were relevant to the determination of the matters before me and in respect of which I was concerned that I had not heard full argument. That hearing concluded around midday yesterday.
5. I have not yet finalised in written form my reasons for judgment, but I have reached a clear view that orders should be made generally in the terms of the orders sought by the administrators.
6. I have decided to pronounce the orders I propose to make today and to publish my reasons for making such orders next week. I have taken this course because I am mindful of the fact that the employees of the Ansett group have been stood down since 14 September 2001, many of them have been retrenched and they have been waiting for their entitlements to wages, leave pay, long service leave pay, pay in lieu of notice and retrenchment pay for a considerable period of time. As is apparent from the fact that the application to the Court was only filed on 3 December 2001, eleven days ago, and the timetable to which I have referred, the Court has moved very quickly in hearing and determining this matter.
7. In the course of the hearing, I was informed of the hardship which has been suffered by the Ansett employees, having regard to the delay which has occurred in them receiving their entitlements. Having reached a clear view that orders should be made, I have decided to pronounce the orders to be made this afternoon, rather than wait for the finalisation of my written reasons for judgment.
8. In summary, I have reached the conclusion that the Court has jurisdiction and power to make the orders sought and that as an exercise of discretion it is appropriate to do so. I therefore propose to make orders and give directions to the effect that:
(a) payments made to the administrators pursuant to the Determination made by the Minister for Employment and Workplace Relations under the Air Passenger Ticket Levy (Collection) Act 2001 (Cth) are debts incurred by the administrators in the performance and exercise of their functions and powers as administrators of each of the companies in the Ansett group for services rendered;
(b) if the administrators’ indemnity out of the property of the Ansett group is insufficient to meet any such debts, the administrators will not be personally liable to repay the debts to the extent of that insufficiency;
(c) priority is given to the repayment of those debts in accordance with the provisions of s 556 and s 560 of the Corporations Act 2001 (Cth);
(d) the administrators may properly and justifiably execute and give effect to a deed proposed to be executed between the administrators and the Commonwealth of Australia insofar as it contains:
(i) provisions substantially in the form of the orders and directions to which I have referred in relation to the payments made under the Determination by the Minister and their priority for repayment; and
(ii) other consequential provisions to which the order will refer.
9. A copy of the order will be published on the internet at www.fedcourt.gov.au, as soon as it is finalised drawn up and sealed by the Court.
10. I propose to allow the parties to speak to the minute of the orders and directions which I will now hand out.
