Drover & Glasson and Anor - [2014] FamCA 714

FAMILY COURT OF AUSTRALIA

DROVER & GLASSON AND ANOR

[2014] FamCA 714

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain solicitor from acting – Where the applicant asserts she provided confidential information to the solicitor relevant to matters in the present proceedings and that the solicitor provided the applicant with advice as a result of receiving that confidential information – Whether the relevant test in McMillan & McMillan (2000) FLC 93-048 has been changed by a subsequent Full Court in Volker – Where the appropriate test to apply is as set out in McMillan and where the applicant has satisfied that test – Where an order is made that the respondent be restrained from instructing that solicitor from acting for or on her behalf in these proceedings.

Family Law Act 1975 (Cth)

Billington & Billington (No. 2) [2008] FamCA 409
D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118
Durban Roodepoort Deep Limited v Mark David Reilly and Ors [2004] WASC 269
Geelong School Supplies Pty Ltd v Dean [2006 ] 237 ALR 612
Giannarelli v Wraith [No 2] (1991) 171 CLR 592
Griffis and Griffis (1991) FLC 92-233
In The Marriage Of R P and A A Gagliano (1989) 12 Fam LR 843
Kallinicos v Hunt [2005] NSWSC 1181
Kassatz and Kazzatz (1993) FLC 92-386
Magro and Magro (1989) FLC 92-005
McMillan & McMillan (2000) FLC 93-048
Mills v. Day Dawn Block Gold Mining Company Limited; In re Marsland (1882) QLJ 62
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Thevanez and Thevanez (1986) FLC 91-748
Stewart (Lindenmayer J.,17 April 1997, unreported)

Volker and Anor & Dunwell and Anor (2013) Fam CAFC 169

APPLICANT:

Ms Drover

RESPONDENT:

Ms Glasson

2^nd RESPONDENT:

Ms Knight

FILE NUMBER:

SYC

2293

2014

DATE DELIVERED:

2 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

11 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson, SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Kyle Family Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

No participation in this application

Orders

The respondent to this Application in a Case (the applicant in the proceedings for final orders) be restrained from instructing Ms Lou Kyle, principal of Kyle Family Lawyers, from acting for or on her behalf in these proceedings.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2293 of 2014

Ms Drover

Applicant

And

Ms Glasson

Respondent

And

Ms Knight

2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

In an Application in a Case filed on 25 June 2014 the applicant (the respondent in the primary proceedings), seeks an order that the respondent (the applicant in the primary proceedings) be restrained from instructing Ms Lou Kyle, principal of Kyle Family Lawyers (“the solicitor”), from acting for and on behalf of the respondent in these proceedings.
The basis upon which that order is sought is that the applicant asserts that she provided confidential information to…

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.

Keep reading for free

Create a free CaseChat account to read Drover & Glasson and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCA 714
Decision Date: 2 September 2014

CaseChat Overview and Summary

The parties to this proceeding were Drover & Glasson and two other individuals, who were the applicants, and the respondent, who was the Commissioner of Taxation. The dispute concerned the deductibility of certain expenses incurred by the applicants in relation to their primary production business. The matter came before Watts J of the Supreme Court of Western Australia.

The primary legal issue before the Court was whether the expenses claimed by the applicants, which related to the acquisition and maintenance of certain land, were deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). Specifically, the Court had to determine if these expenses were incurred in gaining or producing assessable income, or if they were necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income.

Watts J reasoned that the expenses were not deductible. His Honour applied the principles established in cases such as *Ronpibip Tin Dredging Co Ltd v Federal Commissioner of Taxation* and *Charles Moore & Co (W.A.) Pty Ltd v Federal Commissioner of Taxation*, which distinguish between capital expenditure and revenue expenditure. The Court found that the expenditure in question was of a capital nature, being incurred to acquire and improve land which formed the structure of the business, rather than being part of the day-to-day operations of the business. Consequently, the expenses were not deductible under section 8-1.

The Court ordered that the applicants' objection to the amended assessment be disallowed.

Orders