Aland Care Pty Ltd v Pollard

[2024] NSWSC 439

Supreme Court

New South Wales

Medium Neutral Citation:	Aland Care Pty Ltd v Pollard [2024] NSWSC 439
Hearing dates:	19 April 2024
Date of orders:	19 April 2024
Decision date:	19 April 2024
Jurisdiction:	Equity - Applications List
Before:	Kunc J
Decision:	Defendant’s motion dismissed with costs
Catchwords:	CIVIL PROCEDURE — Pleadings — Striking out — No issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Pt 13, r 13.4
Cases Cited:	Aland Care Pty Ltd v Pollard [2023] NSWSC 1466
Category:	Procedural rulings
Parties:	Aland Care Pty Ltd (Plaintiff) Max Pollard (Defendant)
Representation:	Counsel: B Le Plastrier (Plaintiff) Solicitors: Swaab (Plaintiff) Max Pollard (in person)
File Number(s):	2023/361670
Publication restriction:	None

JUDGMENT – ex tempore (Revised)

1. These proceedings arise from the dismissal of the defendant, Mr Pollard, from the employment of the plaintiff, Aland Care Pty Ltd (Aland).  The proceedings have already been the subject of an interlocutory hearing before Robb J:  Aland Care Pty Ltd v Pollard [2023] NSWSC 1466. These reasons should be read, and assume familiarity with, Robb J's judgment.

2. By notice of motion filed 29 November 2023, Mr Pollard seeks, although expressed somewhat discursively, an order that these proceedings be struck out or dismissed under either Pt 13, r 13.4 or Pt 14, r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 14.28 is not applicable because there is currently no pleading before the Court, only a summons. Therefore, I have considered the matter under Pt 13, r 13.4.

3. As I understood him, there were two essential arguments upon which Mr Pollard advanced his application. 

4. The first was his submission that the relief that was sought, and had been obtained on an interlocutory basis, was derived from what he described as “inaccurate evidence and claims”.  The difficulty for that submission, quite apart from its lack of specificity, is that in his judgment, Robb J concluded:

[28] The defendant made a brief attempt to justify the claim that he had made in the Letter that the plaintiff had acted fraudulently in its dealings with the owners corporations that were relevant to the defendant’s employment. The assertions made by the defendant are not sufficient to dispel the effect of the plaintiff’s evidence that justify a finding by the Court that, at this interlocutory stage of the proceedings, there are serious questions to be tried that the defendant’s conduct has involved breaches of the employment contract in the manner summarised above, as well as contraventions of s 18 of the Australian Consumer Law.

5. These proceedings are, therefore, already subject to a finding after a contested hearing that there is a serious question to be tried in respect of the allegations made by Aland against Mr Pollard. That is a complete answer to the suggestion that the proceedings should be peremptorily brought to an end because of “inaccurate evidence and claims”.

6. The second basis upon which Mr Pollard sought his relief today was a submission that there was a binding settlement agreement between him and Aland that had arisen out of a conciliation in the Fair Work Commission.  Mr Pollard's case is that a form of settlement agreement was provided to the parties by the mediator at that conciliation, with what was described as an express three‑day cooling off period. Mr Pollard submits Aland did not avail itself of the cooling off period.  The form of agreement that was provided included a release which, on its proper construction, Mr Pollard submitted, related to these proceedings so that Aland no longer had a cause of action against him.

7. On the other hand, the affidavit evidence of Aland's legal counsel, Mr Farah, who attended the conciliation, is to the effect that the offer of settlement which he made at the conciliation to Mr Pollard was conditional, amongst other things, upon a deed being entered into which excluded these proceedings from the effect of any releases that might otherwise be given between the parties.

8. As I have explained to Mr Pollard, this is not the occasion for me to determine whose version of events is true.  Even if Mr Pollard is correct as to what terms of settlement, if any, may exist between the parties, there is also a serious question that arises as to the construction of that agreement, and whether these proceedings would, in any event, fall within the releases set out in the settlement agreement which Mr Pollard propounds.

9. I accept the submission of Mr Le Plastrier of Counsel, who appeared today for Aland, that the factual dispute between the parties about what occurred at the conciliation and the effect, if any, of the documents which passed between them, give rise to triable issues. This means that Mr Pollard's contentions in relation to any settlement do not rise to the height that would be necessary to allow the Court to strike out, or summarily dismiss, Aland's claim.  In short, the dispute between the parties, unless otherwise able to be resolved, will have to go to a hearing.

10. Mr Le Plastrier sought his client's costs of Mr Pollard's notice of motion, and that those costs should be assessed forthwith.  Mr Pollard submitted that, because his motion, according to him, was necessitated because Aland had not complied with the three‑day cooling off notice, which allegedly accompanied the form of release provided by the mediator, he should not be required to pay Aland’s costs of the motion.

11. I do not accept Mr Pollard's submission because it depends upon a factual question to be resolved at any final hearing. The usual order is that costs should follow the event.  The event in this case is the dismissal of Mr Pollard's notice of motion and he will be ordered to pay Aland's costs of that motion.

12. Mr Le Plastrier also submitted that I should make an order that those costs be payable forthwith. This litigation bears all the hallmarks that it may continue for a considerable period of time.  This issue will not be revisited in its present form.  It is, therefore, appropriate for an order to be made that Aland’s costs be payable by Mr Pollard forthwith as agreed or assessed.

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