Weller v McDonald - [2000] NSWCA 243

CITATION: WELLER v. McDONALD & ORS. [2000] NSWCA 243

FILE NUMBER(S): CA 40590/98

HEARING DATE(S): 14 March 2000

JUDGMENT DATE:
14 September 2000

PARTIES :

Stephen Weller (Appellant)
Roy McDonald (First Respondent)
Macroy Holdings Pty. Limited (Second Respondent)
Macroy Group of Companies (Third to Twentieth Respondents)

JUDGMENT OF: Powell JA at 1; Stein JA at 84; Giles JA at 85

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : CLD 11774/92

LOWER COURT
JUDICIAL OFFICER : Murray AJ

COUNSEL: R.J. Colquhoun and T. G. Howard (Appellant)
F.P. Carnovale (Respondents)

SOLICITORS: Colquhoun & Colquhoun (Rozelle) (Appellant)
Gillis Delaney Brown (Respondents)

CATCHWORDS: CONTRACT - Parties - Offer and Acceptance - Terms of contract - Whether contract of employment or retainer of independent contractor. ND

DECISION: Appeal dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40590/98
CLD 11774/92

POWELL JA
STEIN JA
GILES JA

14 September 2000

WELLER v. McDONALD & ORS.

JUDGMENT

1    POWELL JA: This is an appeal by an unsuccessful Plaintiff against a judgment for the Defendants entered by Murray AJ sitting in the Common Law Division of the Court.
2    In the proceedings the Appellant ("Mr. Weller") - adopting what appears to be becoming a commonplace practice these days - relying upon a multiplicity of cumulative and alternative "causes of action" sought to recover from the First Respondent ("Mr. McDonald"), the Second Respondent, Macroy Holdings Pty. Limited, ("Holdings") and the Third to Twentieth Respondents, a group of companies of which Holdings appears to have been the holding company (the "Macroy Group") damages for what was alleged to have been the breach by Holdings and the Macroy Group of an agreement alleged to have been made in October 1989 between Mr. Weller and Mr. McDonald acting on behalf of Holdings and the Macroy Group.
3    Paragraphs 5-10 of the Third Further Amended Statement of Claim which was filed on behalf of Mr. Weller on the commencement of the hearing before Murray AJ sufficiently indicates the general nature of the primary case which Mr. Weller sought to establish. Those paragraphs (RAB 2-4) were as follows:

"5. On or about 14 or alternatively 16 or alternatively 23 October 1989 (Mr. McDonald), for and on behalf of and as agent for (Holdings and the Macroy Group) and each of them or alternatively one or more of them entered into an agreement with (Mr. Weller) whereby (Mr. Weller) was employed and/or his services were retained as the 'Macroy Group Controller' for (Holdings and the Macroy Group) (the 'Agreement').

6. The Agreement contained the following expressed terms:

(i) that (Holdings and the Macroy Group) pay to (Mr. Weller) a minimum salary or fee of $50,000.00 per annum;

(ii) that (Holdings and the Macroy Group) pay to (Mr. Weller) a minimum bonus of $20,000.00 per annum;

(iii) that (Holdings and the Macroy Group) give to (Mr. Weller) and allow him to acquire shares in (Holdings and the Macroy Group) at the rate of two per…

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.

Continue reading Weller v McDonald

Details

AGLC: Weller v McDonald [2000] NSWCA 243
Case: [2000] NSWCA 243
Decision Date: 14 September 2000

CaseChat Overview and Summary

The appeal concerned the nature of the relationship between the parties, Mr. Weller and McDonald, and whether it constituted a contract of employment or a retainer of an independent contractor. The dispute arose from a claim by Mr. Weller for unpaid wages and entitlements, which McDonald resisted on the basis that Mr. Weller was an independent contractor and not an employee. The matter was heard by the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was to determine the true character of the relationship between Mr. Weller and McDonald. This involved an examination of the terms of their agreement and the practical realities of their working arrangement to ascertain whether it satisfied the criteria for an employer-employee relationship or that of a principal-independent contractor.

The Court of Appeal upheld the primary judge's finding that Mr. Weller was an independent contractor. The reasoning focused on the degree of control McDonald exercised over Mr. Weller, the provision of tools and equipment, the opportunity for Mr. Weller to delegate work, and the method of remuneration. These factors collectively indicated that Mr. Weller operated his own business and was not subject to the level of control characteristic of an employment relationship. The Court applied established principles for distinguishing between employees and independent contractors, emphasizing that the substance of the relationship, rather than its form, was determinative.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

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:	WELLER v. McDONALD & ORS. [2000] NSWCA 243
FILE NUMBER(S):	CA 40590/98
HEARING DATE(S):	14 March 2000
JUDGMENT DATE:	14 September 2000
PARTIES :	Stephen Weller (Appellant) Roy McDonald (First Respondent) Macroy Holdings Pty. Limited (Second Respondent) Macroy Group of Companies (Third to Twentieth Respondents)
JUDGMENT OF:	Powell JA at 1; Stein JA at 84; Giles JA at 85

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 11774/92
LOWER COURT JUDICIAL OFFICER :	Murray AJ

COUNSEL:	R.J. Colquhoun and T. G. Howard (Appellant) F.P. Carnovale (Respondents)
SOLICITORS:	Colquhoun & Colquhoun (Rozelle) (Appellant) Gillis Delaney Brown (Respondents)
CATCHWORDS:	CONTRACT - Parties - Offer and Acceptance - Terms of contract - Whether contract of employment or retainer of independent contractor. ND
DECISION:	Appeal dismissed.