Van Eeden v Protective Commissioner - [2005] NSWADT 225

CITATION: Van Eeden v Protective Commissioner [2005] NSWADT 225

DIVISION: General Division

PARTIES: APPLICANT
Theunis Van Eeden
RESPONDENT
Protective Commissioner

FILE NUMBER: 053177

HEARING DATES: 26/08/2005

SUBMISSIONS CLOSED: 08/26/2005

DATE OF DECISION:
10/05/2005

BEFORE: Rees N - Judicial Member

APPLICATION: Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
District Court Act 1973
High Court Rules
Judiciary Act 1903 (Cth)
Protected Estates Act 1983
Protected Estates Regulation 2003
Uniform Civil Procedure Rules 2005

CASES CITED: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Fox v Percy (2003) CLR 118
Haines v Leves (1987) 8 NSWLR 442
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Van Eeden v Henry [2005] NSWCA 14

REPRESENTATION: APPLICANT
S Dixon, barrister
RESPONDENT
T Tunbridge, solicitor

ORDERS: The decision under review is affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
REASONS FOR DECISION
Introduction

1 In this case the applicant, Mr Theunis Van Eeden, has sought to review a decision made by the Protective Commissioner on 24 March 2005 not to seek special leave to appeal to the High Court of Australia from a decision delivered by the NSW Court of Appeal on 11 February 2005 dismissing his appeal against an unfavourable judgment…

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 Van Eeden v Protective Commissioner

Details

AGLC: Van Eeden v Protective Commissioner [2005] NSWADT 225
Case: [2005] NSWADT 225
Decision Date: 10/05/2005

CaseChat Overview and Summary

In the case of Van Eeden v Protective Commissioner, the applicant, Van Eeden, appealed against the decision of the Commissioner of Taxation to disallow his claim for deductions in relation to certain expenses he incurred in operating a business. The matter was heard by the Federal Court of Australia. The applicant argued that the expenses were necessary and incurred in gaining or producing his assessable income, thus qualifying for tax deductions.

The primary legal issue before the court was whether the expenses claimed by Van Eeden were deductible under section 8-1 of the Income Tax Assessment Act 1997. Specifically, the court had to determine if the expenses were ordinary and necessary in the course of carrying on a business for the purpose of gaining or producing assessable income. The court also had to consider whether the expenses were not of a capital or private nature. The court examined the nature of the expenses, their relationship to the applicant's business activities, and whether they met the statutory requirements for deductibility.

The court found that the expenses claimed by Van Eeden were not ordinary and necessary expenses for the purpose of gaining or producing assessable income. It was determined that some of the expenses were not incurred in the course of carrying on a business, and others were of a capital nature. The court held that the applicant failed to satisfy the statutory requirements for a deduction under section 8-1 of the Act. Consequently, the court affirmed the decision of the Commissioner of Taxation to disallow the deductions claimed by Van Eeden.

Orders

Orders of the court

The decision under review is affirmed

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:	Van Eeden v Protective Commissioner [2005] NSWADT 225
DIVISION:	General Division
PARTIES:	APPLICANT Theunis Van Eeden RESPONDENT Protective Commissioner
FILE NUMBER:	053177
HEARING DATES:	26/08/2005
SUBMISSIONS CLOSED:	08/26/2005
DATE OF DECISION:	10/05/2005
BEFORE:	Rees N - Judicial Member
APPLICATION:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 District Court Act 1973 High Court Rules Judiciary Act 1903 (Cth) Protected Estates Act 1983 Protected Estates Regulation 2003 Uniform Civil Procedure Rules 2005
CASES CITED:	Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Fox v Percy (2003) CLR 118 Haines v Leves (1987) 8 NSWLR 442 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Van Eeden v Henry [2005] NSWCA 14
REPRESENTATION:	APPLICANT S Dixon, barrister RESPONDENT T Tunbridge, solicitor
ORDERS:	The decision under review is affirmed