Bellach v MWAHS [2003] NSWCA 165

New South Wales Court of Appeal

CITATION : Bellach v MWAHS [2003] NSWCA 165 HEARING DATE(S) : 20/06/03 JUDGMENT DATE : 20 June 2003

JUDGMENT OF : Meagher JA at 1, 16; Ipp JA at 14; McColl JA at 15 DECISION : 1. Appeal allowed; 2. The orders made by his Honour on 12 March 2002 be set aside; 3. The action be remitted to the District Court for determination of all other matters; 4. The respondent Health Service to pay the costs of the present appeal.

CATCHWORDS : Termination of action by Deed of Release - Efficacy of Deed of Release - Sufficiency of Deed of Release for application under Pt 11 A r3 - Factors impairing efficacy of Deed of Release CASES CITED : Grant v John Grant 91 CLR 112 Robert Zbigniew Bellach PARTIES : v Mid Western Area Health Service FILE NUMBER(S) : CA 40281 of 2002 COUNSEL : A: P Deakin QC and P Doherty R: A C Bridge SC SOLICITORS : A: Palmers Solicitors R: Hicksons Lawyers

LOWER COURT District Court JURISDICTION : LOWER COURT 17 of 2001 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40281 of 2002

MEAGHER JA IPP JA McCOLL JA

Friday 20 June 2003 ROBERT ZBIGNIEW BELLACH v MID WESTERN AREA HEALTH SERVICE Judgment 1 MEAGHER JA: This is an application by a worker, Mr Bellach, who appeals from a judgment given by his Honour Puckeridge DCJ on 12 March 2002 in favour of his employer, the Mid Western Area Health Service. 2 The action in which his Honour was involved was an action in which Mr Bellach sued the Health Service for injuries allegedly sustained by him when he fell off a ladder while pruning some trees. 3 The defendant Health Service, as a defence to that action, relied on a deed of release dated 29 February 2000. 4 The deed of release arose after and in relation to an entirely different matter, namely a dispute which Mr Bellach had become engaged in with a fellow employee, resulting in the dismissal of both Mr Bellach and the other employee. Mr Bellach then proceeded in the Industrial Relations Commission seeking relief from an alleged unfair dismissal. The deed of release now in question was a deed which terminated that action. 5 It is important to note precisely what the recitals of that deed say. They are as follows: RECITALS: A. The Releasor was employed by the Releasee as a gardener. B. The Releasor has brought proceedings in the New South Wales Industrial Relations Commission Proceedings No: 5848 of 1999 for relief arising from alleged unfair dismissal. C. The Releasee denies the claim. D. The Releasee and Releasor by mutual consent have agreed to enter into this Deed of Release. E. These proceedings have been settled and this Deed of Release records the terms of the settlement. 6 The principal covenant in the deed was as follows: