Clifton & Aspen - [2023] FedCFamC1F 376

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Clifton & Aspen [2023] FedCFamC1F 376

File number(s): SYC 760 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 15 May 2023

Catchwords:
FAMILY LAW – PRACTICE & PROCEDURE – Where the wife caused a subpoena to be served on the commercial lawyers for the husband and his father – Where the husband and his father objected – Confidential documents – Legal professional privilege – Where the wife contends that privilege was lost by the operation of s 125 of the Evidence Act 1995 (Cth) – Allegations of sham – Where even if the wife’s allegations are accepted at face value, they do not inexorably lead to a finding of sham – Claim of legal professional privilege upheld.

FAMILY LAW – PRACTICE & PROCEDURE – Oral application made by the wife to issue further subpoenas – Where the subpoenas were widely drawn – Where the further subpoenas are sought following the inspection of documents produced by a bank – Where those documents are contended to be relevant to the answers given by the husband in cross-examination – Sham claim abandoned – No apparent relevance to the remaining issues in the matter – Subpoenas declined to be issued.

FAMILY LAW – PRACTICE & PROCEDURE – Where the wife filed an Application in a Proceeding to amend her pleadings, tender documents and reopen cross-examination of the husband and his father – Where the application is brought following discovery of further documents – Where final submissions have been completed and only matters as to the expert report and balance sheet items remained – Several considerations to determine whether in interests of justice – Where the wife is to be given the opportunity to put the proposed claim forward but limited to the
foreshadowed case – Application granted.

Legislation:
Evidence Act 1995 (Cth) ss 118, 125

Family Law Act 1975 (Cth) ss 79, 106B

Cases cited:
AWB Ltd v Cole (No 5) (2006) 234 ALR 651

Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038

Jess v Scott (1986) 12 FCR 187

Kang v Kwan & 2 Ors [2001] NSWSC 698

Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541

Division: Division 1 First Instance

Number of paragraphs: 131

Date of hearing: 6 April 2023

Place: Sydney

Counsel for the Applicant: Mr Sirtes SC with Mr Auld

Solicitor for the Applicant: Delaney Lawyers

Counsel for the First Respondent: Mr Cummings SC with Mr Rogan

Solicitor for the First Respondent: Pearson Emerson

Counsel for the Second and Third Respondents: Mr Sulan SC with Ms Jeliba

Solicitor for the Second and Third Respondents: Barkus Doolan Winning
ORDERS

SYC 760 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CLIFTON

Applicant

AND:
MR B ASPEN

First Respondent

D PTY LTD

Second Respondent

MR C ASPEN

Third Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

15 MAY 2023

THE…

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 Clifton & Aspen

Details

AGLC: Clifton & Aspen [2023] FedCFamC1F 376
Case: [2023] FedCFamC1F 376
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was an application by the wife, Ms Clifton, seeking orders in relation to a number of matters. The husband, Mr B Aspen, and his father, Mr C Aspen, opposed the application. The application concerned a trust, the D Trust, established by the husband's mother and the husband's father. The wife sought leave to reopen the evidence and plead a new course of action. The claim of sham was abandoned during the course of the hearing. The wife sought to set aside a disposition by K Pty Ltd, a company owned by the husband, of its equitable interest in some land to V1 Pty Ltd, a company in which the husband held a half share. The wife's application was based upon certain agreements and deeds. The wife argued that the agreements and deeds showed that K Pty Ltd had an interest in the land sufficient for it to become the registered proprietor. The Court found that the agreements and deeds did not necessarily lead to such an inference. The Court found that it was in the interests of justice for the wife to be given the opportunity to put the proposed claim forward. The opportunity to do so was limited. The wife was to proceed on the basis that she was unlikely to be granted any further indulgences in the running of this case. The matter was listed for further directions on 22 May 2023.

Orders