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Australian Air Express Pty Ltd v Langford

Australian Air Express Pty Ltd v Langford

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Case Copied 4 April 2005 46 min read

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CITATION:
Australian Air Express Pty Limited v Langford [2005] NSWCA 96

HEARING DATE(S):
28 July 2004

JUDGMENT DATE:

4 April 2005

JUDGMENT OF:
Ipp JA at 1; Tobias JA at 2; McColl JA at 3

DECISION:
(1) Leave to appeal granted, but appeal dismissed. (2) Appellant to pay respondent's costs.

CATCHWORDS:
EMPLOYMENT - employee or independent contractor - Commonwealth authority operating courier business - Owner/Driver Agreement requiring driver to provide truck and pay all expenses associated with its operation and maintenance - Prescribed Payment System tax deducted from driver's earnings - No sick leave or holiday pay paid to driver - driver permitted to engage substitute driver (D)

LEGISLATION CITED:
Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES CITED:
Australian Mutual Provident Society v Allen and Another (1978) 52 ALJR 407 (sub nom. Australian Mutual Provident Society v Chaplin and Another)
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Hollis v Vabu Pty Ltd t/as Crisis Couriers [1999] NSWCA 334; (1999) Aust Torts Reports 81-535
Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389
JA & BM Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125; (2001) 105 IR 66
Konrad v Victoria Police [1999] FCA 988; (1999) 91 FCR 95
Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210
Massey v Crown Life Insurance Co [1978] 1 WLR 676
National Transport Insurance Limited v Chalker & Ors [2005] NSWCA 62
Paddison v Ultimate Image Pty Ltd t/as Hawkesbury Plasterworks [2004] NSWCA 410
Queensland Stations Pty Ltd v Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539
Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179
Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance [1968] 2 QB 497
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (1997) 37 ATR 528
Sammartino v Mayne Nickless Express t/a Wards Skyroad (2000) 98 IR 168
Scerri v Cahill (1995) 14 NSWCCR 339
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681
Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537
Vacik Distributors Pty Ltd v Kelly (1995) 12 NSWCCR 30
Wright v Attorney-General (Tas) [1954] HCA 26; (1954) 94 CLR 409

PARTIES:
Australian Air Express Pty Limited (Appellant)
Donald Langford (Respondent)

FILE NUMBER(S):
CA 41183/03

COUNSEL:
G M Watson SC/N J Owens (Appellant)
J E Rowe (Respondent)

SOLICITORS:
Ebsworth & Ebsworth (Appellant)
Harpers Solicitors (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 7118/02

LOWER COURT JUDICIAL OFFICER:
Walmsley SC DCJ

CA 41183/03
DC 7118/02

IPP JA
TOBIAS JA
McCOLL JA
Monday, 4 April 2005

AUSTRALIAN AIR EXPRESS PTY LIMITED v Donald LANGFORD

The appellant runs a delivery business in all States and Territories of Australia. The respondent is a delivery driver, who delivered goods…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 96
Decision Date: 4 April 2005

CaseChat Overview and Summary

The dispute in *Australian Air Express Pty Ltd v Langford* concerned whether Mr Langford was an employee of Australian Air Express Pty Ltd or an independent contractor. The case was heard in the Court of Appeal of New South Wales. Australian Air Express operated a courier business and had entered into an Owner/Driver Agreement with Mr Langford.

The central legal issue before the Court of Appeal was to determine the true characterisation of the relationship between Australian Air Express and Mr Langford, specifically whether he was an employee or an independent contractor for the purposes of employment law. This determination was crucial for establishing Mr Langford's entitlements, such as sick leave and holiday pay, which were not provided to him under the existing arrangement.

The Court of Appeal considered the terms of the Owner/Driver Agreement, which required Mr Langford to provide his own truck and bear all associated operating and maintenance expenses. It also noted that tax was deducted from his earnings under a prescribed payment system and that he was permitted to engage a substitute driver. Applying established principles for distinguishing between employees and independent contractors, the Court found that the overall nature of the relationship pointed towards Mr Langford operating as an independent contractor, despite some factors that might suggest an employment relationship.

Consequently, the Court of Appeal granted leave to appeal but dismissed the appeal, ordering Australian Air Express Pty Ltd to pay Mr Langford's costs.

Orders

Orders of the court

(1) Leave to appeal granted, but appeal dismissed. (2) Appellant to pay respondent's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Australian Air Express Pty Limited v Langford [2005] NSWCA 96
HEARING DATE(S):	28 July 2004
JUDGMENT DATE:	4 April 2005
JUDGMENT OF:	Ipp JA at 1; Tobias JA at 2; McColl JA at 3
DECISION:	(1) Leave to appeal granted, but appeal dismissed. (2) Appellant to pay respondent's costs.

CATCHWORDS:	EMPLOYMENT - employee or independent contractor - Commonwealth authority operating courier business - Owner/Driver Agreement requiring driver to provide truck and pay all expenses associated with its operation and maintenance - Prescribed Payment System tax deducted from driver's earnings - No sick leave or holiday pay paid to driver - driver permitted to engage substitute driver (D)
LEGISLATION CITED:	Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES CITED:	Australian Mutual Provident Society v Allen and Another (1978) 52 ALJR 407 (sub nom. Australian Mutual Provident Society v Chaplin and Another) Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Hollis v Vabu Pty Ltd t/as Crisis Couriers [1999] NSWCA 334; (1999) Aust Torts Reports 81-535 Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 JA & BM Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125; (2001) 105 IR 66 Konrad v Victoria Police [1999] FCA 988; (1999) 91 FCR 95 Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 Massey v Crown Life Insurance Co [1978] 1 WLR 676 National Transport Insurance Limited v Chalker & Ors [2005] NSWCA 62 Paddison v Ultimate Image Pty Ltd t/as Hawkesbury Plasterworks [2004] NSWCA 410 Queensland Stations Pty Ltd v Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance [1968] 2 QB 497 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (1997) 37 ATR 528 Sammartino v Mayne Nickless Express t/a Wards Skyroad (2000) 98 IR 168 Scerri v Cahill (1995) 14 NSWCCR 339 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537 Vacik Distributors Pty Ltd v Kelly (1995) 12 NSWCCR 30 Wright v Attorney-General (Tas) [1954] HCA 26; (1954) 94 CLR 409
PARTIES:	Australian Air Express Pty Limited (Appellant) Donald Langford (Respondent)
FILE NUMBER(S):	CA 41183/03
COUNSEL:	G M Watson SC/N J Owens (Appellant) J E Rowe (Respondent)
SOLICITORS:	Ebsworth & Ebsworth (Appellant) Harpers Solicitors (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7118/02
LOWER COURT JUDICIAL OFFICER:	Walmsley SC DCJ