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: 3. Release of liability The Releasor hereby releases and discharges the Releasee from all and any liability, claim, damage, action, loss, cost and expense arising out of or incidental to his employment with the Releasee and its termination, such release not extending to any or all of the Releasor's rights to make any claim for workers' compensation. 7 In light of those circumstances alone, it is fairly clear I should have thought that the deed of release has nothing to do with the present action, despite the width of the third paragraph of the deed. This prima facie conclusion is confirmed by the fact that it would appear that the solicitors acting for the Health Service, when they executed the deed, had no idea of the existence of the present action. 8 It would also appear to be the case that at the date that Mr Bellach executed the deed of release he did not turn his attention to the effect of that deed on the present action and no person present drew his attention to it. 9 I might further add that in any event the existence of the deed and its sufficiency as a defence really do not justify an application under Part 11A Rule 3 of the Rules for Dismissal of Proceedings. 10 The normal, and, in my view, the correct order which we should make is set aside his Honour's orders, his Honour having found in favour of the Health Service, and remit the matter to the District Court so that all matters be tried, including the efficacy of the deed of release. We have put that option to both counsel and both counsel have very sensibly come to the conclusion that the efficacy of the deed of release can be decided by us at present, other matters only being remitted to the District Court. 11 I might add that his Honour was not referred to the decision of the High Court of Australia in Grant v John Grant which is vol 91 CLR p 112. 12 This Court is of the view that the Deed of Release is no valid defence to the present action. 13 The orders therefore which I propose the Court should make are as follows: (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. 14 IPP JA: I agree with the reasons and orders proposed by Meagher JA. I would simply add that the consideration in the release seems to me to be prima facie inconsistent with an intention for the release to cover matters other than the proceedings in the New South Wales Industrial Relations Commission proceedings. 15 MCCOLL JA: I agree with Meagher JA and Ipp JA. 16 MEAGHER JA: The orders sought are the orders which I have proposed. ***** Last Modified: 06/25/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.