GURWINDER SINGH v MY SUPPORT MY WAY PTY LTD [2026] SADC 16

First Applicant: GURWINDER SINGH Counsel: MR P HEALEY - Solicitor: PGC LEGAL Second Applicant: JASHAN TATRA Counsel: MR P HEALEY - Solicitor: PGC LEGAL Third Applicant: NIRMAL SINGH Counsel: MR P HEALEY - Solicitor: PGC LEGAL Fourth Applicant: PRABHRAJ SINGH BAMRA Counsel: MR P HEALEY - Solicitor: PGC LEGAL First Respondent: MY SUPPORT MY WAY PTY LTD Counsel: MR A MAIK - Solicitor: BEGER & CO Second Respondent: NIKHIL SACHDEV Counsel: MR A MAIK - Solicitor: BEGER & CO Third Respondent: ASHY MASOOM Counsel: MR A MAIK - Solicitor: BEGER & CO Fourth Respondent: AJAYPAL SINGH Counsel: MR A MAIK - Solicitor: BEGER & CO Hearing Date/s: 16/02/2026 File No/s: CIV-25-004685 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. SINGH & ORS v MY SUPPORT MY WAY PTY LTD & ORS [2026] SADC 16 Judgment of Her Honour Judge Mackenzie 27 February 2026 INTERLOCUTORY APPLICATION - SPLIT TRIAL - PRELIMINARY QUESTION - SETTLEMENT AGREEMENT The respondents brought an application for a split trial to determine a preliminary question about whether an alleged settlement agreement was to bar the applicants’ substantive claims for underpaid wages. The purported settlement agreement was alleged to be made following telephone discussions and email correspondence. There was no written executed settlement agreement. Its formation would need to be proved and its terms construed at trial. Held, refusing the application: (1) The respondents have failed to discharge their onus to show there is a good reason to depart from the general rule that all issues should be disposed of in a single trial. (2) The preliminary question gives rise to numerous complexities that are not likely to be efficiently dispensed with at a separate trial. There is a risk that the separate trial would therefore be disproportionate to any subsequent trial. (3) There is likely to be a need for the examination of up to the same five witnesses at both trials giving rise to complexities for any credibility findings at the separate trial. -- 1 of 11 -- (4) There is a timeliness and efficiency in dealing with all issues in a single trial. Uniform Civil Rules 2020 (SA); Fair Work Act 2009 (Cth), referred to. SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; Tepko Pty Ltd v The Water Board (2001) 206 CLR 1; [2001] HCA 19; Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495; Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112; Knight Frank Australia Pty Ltd v Australian Central Credit Union Ltd [2019] SASC 9; Wardman v Macquarie Bank Limited [2023] FCAFC 13, considered. -- 2 of 11 -- SINGH & ORS v MY SUPPORT MY WAY PTY LTD & ORS [2026] SADC 16 Nature of proceedings and background 1 This matter concerns an interlocutory application by the respondents seeking a split trial so that a preliminary question can be determined first; that question being whether an alleged settlement agreement bars the substantive claims of the applicants for underpaid wages. 2 The four applicants are former employees of My Support My Way Pty Ltd (MSMW) (the first respondent). MSMW is a disability services provider registered with the National Disability Insurance Agency. 3 I understand the second to fourth respondents are respectively, a director, chief operating officer and chief financial officer of MSMW. 4 The applicants issued proceedings in April 2025 seeking damages in respect of underpaid wages relating to overtime not paid for passive overnight shifts they say they worked for MSMW. Pecuniary penalties for contravention of the Fair Work Act 2009 (Cth) are also sought, in their joint defence the respondents make bare denials relating to these allegations. 5 The thrust of the respondents’ position at this stage is set out in paragraph 7 of their defence. The respondents plead that the applicants are estopped from proceeding in this action because the applicants’ claims have been compromised or settled. It is common ground that there was no executed settlement agreement. The respondents briefly particularise an alleged settlement agreement between the parties made following telephone discussions involving some of the parties in or about early May 2024 and apparently reflected in email correspondence of 10 May 2024. I will turn shortly to provide a more comprehensive description of the alleged settlement agreement and what issues would likely need to be addressed at any separate trial for this preliminary matter. The interlocutory application and evidence 6 The respondents filed an interlocutory application (FDN 18) seeking a separate trial to determine as a preliminary matter whether the alleged settlement agreement between the parties will bar the applicants from maintaining their claim for underpaid wages. Amongst the orders sought by the application is a declaration that there is a binding agreement between the parties in terms that bar the applicants from commencing and/or further pursuing their claim (FDN 1) against the respondents. 7 The respondents filed an affidavit of Mr Sachdev1 (the second respondent) which annexed, amongst other things, a draft “Deed of Exit Terms” and email correspondence pertaining to a “mutual understanding and agreement” between 1 Affirmed on 7 October 2025 (FDN 11). -- 3 of 11 -- [2026] SADC 16 2 certain of the parties on 10 May 2024. There was no challenge to the authenticity of these documents and counsel for both parties made reference to them during argument. Clearly, if the matter proceeds to trial these documents would be sought to be tendered and would take on a particular focus for the trial judge. 8 The applicants also filed four affidavits, respectively affirmed by each of them on 29 October 2025, setting out their proposed evidence in support of the substantive claim for underpaid wages (FDN 12, 13, 14 and 15). Again, these affidavits (including their attachments) would presumably be sought to be tendered into evidence at trial, as being relevant to setting out each applicant’s account of the alleged formation of the settlement agreement. 9 Given the focus of these filed affidavits was directed to the trial on the substantive issue I did not consider it necessary or appropriate to admit them into evidence for the purpose of hearing argument on the interlocutory application. I preferred not to invite the potential for cross-examination of witnesses at this stage, where it was only necessary for me to have regard to the kinds of evidence and issues that might be before the trial judge hearing the separate trial. As I have mentioned, there was no disagreement about the existence of the email correspondence, the draft “Deed of Exit Terms” or the occurrence of telephone discussions between certain of the parties as a prelude to the email correspondence. It is the content and relevance of this correspondence and discussions to the formation and construction of any settlement agreement that will ultimately be in issue at trial. 10 The parties also filed separate written submissions concerning the application for a separate trial (FDN 16, FDN 21 for the respondents and FDN 19 for the applicants). These submissions traversed into subject matter that would properly be relevant to the substantive hearing on the preliminary question were it to proceed, and were not strictly confined to the interlocutory issue of whether a separate trial is warranted. That said, I accept that it is to some degree necessary to have regard to the different arguments that would be made by the parties if the matter were to proceed to a separate trial. These submissions, together with counsels’ oral addresses, assisted my understanding of the extent of the differences between the parties on the proposed preliminary question and enabled me to gauge, in a provisional sense, the potential differing outcomes. 11 It was common ground that a separate trial, if ordered, would address the question as to whether the applicants had by the alleged settlement agreement released the respondents from the claims brought by the applicants for the underpayment of their wages. During the course of argument on the application it became apparent that this question would necessarily enliven further subsidiary questions for any separate trial, including: (i) who were the parties to the alleged settlement agreement? -- 4 of 11 -- [2026] SADC 16 3 (ii) were certain of the parties authorised to act for other parties in telephone discussions and correspondence that took place in or around early May 2024? (iii) what was the scope of the release, if any, given by the applicants to the respondents? (iv) were some or all of the terms of the settlement agreement reflected in the draft “Deed of Exit Terms” or did that draft document otherwise provide relevant context to the construction of the “mutual understanding” stated in the email correspondence? (v) whether consideration had flowed from each party so as to create a contractually binding settlement? (vi) whether liability to pay minimum statutory employee entitlements under the Fair Work Act could be released by the settlement terms without any payment to the applicants? 12 To determine the preliminary question, it would also be necessary to understand what happened during the period leading up to the telephone discussions and email correspondence relevant to the alleged settlement agreement. In particular, the circumstances surrounding the solicitors for the respondents sending a pre-action notice to the applicants on 8 May 2024 alleging breaches of employee duties would likely need to be traversed at the split trial as to relevant contextual matters. Those alleged breaches include an allegation that the applicants had engaged in competing business activities during their employment with MSMW through establishing a company to provide disability services – being Vitium Curia Pty Ltd, and also by being involved with another disability service provider, Goodwill Associates Pty Ltd. Principles governing the splitting of a trial 13 The principles governing the determination of an application to split a trial are well known. 14 The starting point is that it will usually be fairer and more expedient to have all matters in issue determined in a single trial.2 15 The question of whether to then depart from that position is a matter of discretion.3 That discretionary power is to be exercised judicially but is otherwise unfettered.4 The party bringing the application for a split trial bears the burden of demonstrating to the court that it is desirable that such a departure be made. 2 This is the premise of UCR 151.1(1). 3 SA Water Corporation v United Water International Pty Ltd [2009] SASC 383 at [46] (Anderson J). 4 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] (Einstein J). -- 5 of 11 -- [2026] SADC 16 4 16 At the heart of the factors relevant to consideration of an application for a split trial is the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in dispute between the parties.5 The utility, economy and fairness to the parties of a split trial must be considered to be beyond question. To this end, the High Court has warned against the dangers of ordering separate trials and has observed that potential savings of costs and avoiding of delay by ordering separate trials may prove illusory.6 17 The preliminary question must be a question that is “ripe” for separate and preliminary determination.7 Factors that would ordinarily favour the exercise of discretion to order a split trial include:8 • where resolution of the separate question will have the effect of resolving the entirety or substantially narrow the issues in dispute; • where the resolution of the separate question creates a strong prospect for the parties to resolve their dispute themselves and thus avoid further litigation; and • where there is a clear separation between the preliminary question and all other issues in the case, including as to the credit of witnesses. 18 Factors that often weigh against ordering a separate trial include:9 • where there are intertwined issues of facts or law between the separated question and the other questions such that a determination of the separate question will not have a substantial effect upon the width of the field of litigious controversy or the prospect of settlement on the balance of the litigation; • where there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witnesses, thus (usually) precluding the same judicial officer from again dealing with the matters going to the credit of the common witnesses; and • there is a possibility that resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of 5 UCR 1.5. 6 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168] to [170] (Kirby and Callinan JJ). 7 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [8] (Branson J). 8 Idoport at [7]. 9 Ibid. -- 6 of 11 -- [2026] SADC 16 5 proceedings, interruption to the court and undesirable fragmentation of the proceedings. 19 Also relevant are concerns about the proportionality between the time and costs incurred in a separate trial against the time and costs for the entirety of the substantive proceeding. 20 Further, where the question is one of mixed facts and law, such as in the present case, the discretionary exercise is carried out having regard to whether all of the relevant facts will be ascertainable for the split trial; whether as assumed facts, agreed facts or as facts to be judicially determined.10 There is a danger in proceeding to determine a separate question if it might bring about significant contested factual issues, significantly overlapping with issues to be determined at the trial or prolonging the proceeding.11 The parties’ submissions The respondents’ submissions 21 A significant aspect of the respondents’ submissions is that, thus far, they have refrained from bringing a substantive counterclaim against the applicants (and a cross-claim to the extent it concerns the applicants’ company, Vitium Cura Ptd Ltd) because they considered MSMW to be bound by releases given in the alleged settlement agreement. It was apparent that the substance of the counterclaim would be for alleged breaches of the restraint terms of the applicants’ employment contracts and their fiduciary duties which were the subject of the pre- action notice issued to them by MSMW’s lawyers by letter dated 8 May 2024 (see paragraph 12 above). 22 The respondents submitted that they had conducted their defence on a consistent basis which asserted that the settlement agreement was binding. They said it was on that basis that they intended not to pursue any counterclaim against the applicants unless and until the court determined the alleged settlement agreement was not effective to bar the applicants’ claims. They submitted that if they had to await the determination of the settlement agreement after a “full-blown trial” they would then propose seeking a stay of execution of any judgment for the applicants whilst their counterclaim is then litigated. Whether this is an appropriate strategy was canvassed during argument, particularly having regard to the potential for Anshun estoppel and discretionary considerations for ordering a stay in view of the efficient use of court resources and the adverse impact on parties of further delays. 23 The respondents contended that a split trial will save all parties and the court substantial time because, if the preliminary question is determined in favour of the respondents, the applicants’ claim then “falls away”. Of course, this submission necessarily relies upon the court finding a binding settlement agreement was 10 Ibid. 11 Ibid at [8]. -- 7 of 11 -- [2026] SADC 16 6 reached and then giving broad construction to the settlement terms so as to capture the applicants’ releasing the respondents from any claims for underpaid wages and pecuniary penalties. 24 The respondents’ counsel, Mr Maik, developed their argument by pointing to reasons why the court would likely make findings in favour of the respondents at the separate trial. Mr Maik relied upon the Masters v Cameron principles which would require a factual inquiry into the words and conduct of the parties in or about 10 May 2024, contending they would reveal the parties having reached a legally binding settlement agreement extending to release the respondents from the applicants’ claims for underpaid wages. 25 Though conceding that there would be at least five witnesses called and the evidence would be contested, Mr Maik estimated the time needed for the separate trial on the preliminary question would be no more than one day. 26 It is in that context that the respondents agitate for a separate trial so as to determine the “threshold question” and so avoiding “unnecessary litigation” and removing uncertainty. The applicants’ submissions 27 The applicants oppose a split trial. Counsel for the applicants, Mr Healey, set out the delays that had already been experienced in these proceedings which he said were particularly burdensome when the proceedings concern claims for underpayment of wages. The applicants were said to be substantially ready for trial on their underpayment claims. The applicants contended that a split trial should not be ordered because: • there is a risk of further delay in determination of the applicants’ claims for underpaid wages (a claim that they submitted ought to be given significance for public policy reasons); • there will be fragmentation of issues which should be avoided; • there will be a duplication of examination of up to seven witnesses; • significantly, there will need to be findings as to credit of the witnesses in determining the preliminary question which will be prejudicial to the conduct of the subsequent trial. 28 The applicants also sought to rely on the purported strength of their case that the settlement agreement would not be found to bar them from bringing their claim for underpaid wages. In oral submissions Mr Healey relied upon the principles for the construction of general words in settlement agreements as set down by the High Court in Grant v John Grant & Sons Pty Ltd.12 He also referred to the application 12 [1954] HCA 23; (1954) 91 CLR 112. -- 8 of 11 -- [2026] SADC 16 7 of these principles in the more recent decisions of Stanley J in Knight Frank Australia Pty Ltd v Australian Central Union Ltd,13 and of the Full Court of the Federal Court in Wardman v Macquarie Bank.14 29 It is apparent that a separate trial would see significant contest between the parties about the construction of the words used by the parties in the email correspondence having regard to the context in which they were sent. The principles in Grant v John Grant & Sons Pty Ltd will necessitate the exploration of “those things” which were in the contemplation of the parties at the time the release was given.15 30 Mr Healey also highlighted some aspects of the preliminary question that would be likely to make it more difficult to resolve and thereby challenged the respondents’ contention that the preliminary question would be efficiently addressed in a single day. Those aspects included: • whether the underpayment of wages required to be paid pursuant to the Fair Work Act could be bargained away by employees under a settlement agreement with their (former) employer; • whether a settlement agreement was capable of dealing with pecuniary penalties to be adjudged by the court under the Fair Work Act; • whether the restraint terms sought to be enforced against the applicants in terms of the settlement were unlawful restraints affecting the validity of this settlement agreement; • whether all of the applicants and all of the respondents were privy to the alleged agreement; • whether sufficient consideration had flowed such that any agreement would be contractually binding in circumstances where there had been no settlement payments made by either side; and • whether the terms of the agreement were based upon the terms of the draft “Deed of Exit Terms”. 31 The applicants also contended that there would be significant contest at the split trial about the scope of the release construed from the wording of the email correspondence. Mr Healey said that the applicants would argue that even if a binding agreement could be found to have been reached by a meeting of minds (which would not be conceded), its scope would not bar the applicants from maintaining their claim for underpaid wages. 13 [2019] SASC 9 at [32] to [36] (Stanley J). 14 [2023] FCAFC 13 at [206] to [209] (Wheelahan J). 15 Wardman v Macquarie Bank Limited at [208]. -- 9 of 11 -- [2026] SADC 16 8 32 Given these uncertainties, Mr Healey contended that a split trial may not necessarily bring these proceedings to a conclusion, even if the respondents have a degree of success on some aspects. Consideration 33 I have approached consideration of this application in accordance with the legal principles described earlier in these reasons. I consider that the respondents have failed to discharge their onus to show that there is good reason for departure from the general rule that all issues should be disposed of in a single trial. As such, I refuse the application of the respondents seeking a separate trial as to the question of the alleged settlement agreement constituting a bar to the applicants’ claims for underpaid wages. 34 Principally, I am not satisfied that the question for preliminary determination has narrow compass and can be efficiently argued and determined. In view of the formation of the alleged settlement agreement having to be proved by evidence of the conduct of the parties in or around early May 2024, including email correspondence between some of the parties, I am not satisfied that the split trial would not traverse into territory that would also need to be considered at the final trial. The examination of the same witnesses at both trials also invites the prospect of complexity for the trial judge who may have to hear the same evidence twice and would likely be faced with the difficulty of credibility findings from the split trial, possibly resulting in a different trial judge having to be allocated. 35 In forming my opinion I have paid careful regard to the kinds of arguments and evidence that would be likely to be before the split trial and I am not satisfied that the preliminary question would be efficiently resolved. The respondents’ contentions for a split trial depend heavily upon the respondents being successful in prosecuting their case that the alleged settlement agreement bars the applicants from bringing their underpayment claims in this proceeding. I must be careful not to prejudge the preliminary question which will now ultimately fall for determination by the trial judge; however, it is appropriate for me to observe that there would seem to be numerous obstacles to the success of the respondents’ contention that the settlement agreement bars the applicants’ current claims. I prefer the applicants’ submissions about the difficult issues that a trial judge will need to grapple with in determining the preliminary question (see paragraphs 30 and 31 above). 36 The respondents’ interlocutory application must therefore be recognised as being quite different to those applications brought by a party seeking to enforce an executed settlement deed which contains express language releasing that party from the very claim being agitated. In those kinds of cases, the tendering of the settlement deed itself will often give sufficient reason for the court to readily dispose of the claim. The circumstances of the alleged settlement agreement in this case reveal a more complex array of matters before a court would be sufficiently informed to determine the effect or reach of the alleged settlement. -- 10 of 11 -- [2026] SADC 16 9 37 Further, it is my view that there is a palpable risk of disproportion between matters before the split trial and any later trial, particularly as the relatively confined claims for underpaid wages and pecuniary penalties are all that is to be determined at the later trial as the matter currently stands. Given some of the complexity for determining the formulation and scope of the settlement agreement I have described above, I think there is a reasonable prospect that the split trial will raise more complexities, require more evidence and run longer than the later trial. As such, there is an efficiency and timeliness in all of the questions being dealt with in a single trial. 38 For these reasons I am not satisfied that determining the preliminary question at a split trial would be expedient or fair and I do not think it would be in the interests of justice for me to make such an order. Orders 39 I therefore make orders dismissing the respondents’ interlocutory application for a split trial. 40 If necessary, I will hear the parties as to costs. -- 11 of 11 --