Secretary, Department of Social Security v Barnes [1987] FCA 815

JUDGMENT No. .Botcund KLEZ

IN THE FEDERAL COURT OF AUSTRALIA

) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G.16 of 1987 ) )

GENERAL DIVISION

On Appeal from _ the Administrative Appeals Tribunal

BETWEEN:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Applicant

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RUBY MAY BARNES

Respondent

CORAM: Forster, Northrop & Burchett JJ, PLACE: Adelaide DATE: 14 May 1987

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an appeal by the Secretary, Department of Social Security from a decision of the Administrative Appeals Tribunal, constituted by Deputy President Layton, that the respondent, who was then aged 93, had not disposed of property or income within

the meaning of section 6AC of the Social Security Act 1947, as

amended by the Social Security and _Veterans' Affairs

(Miscellaneous Amendments) Act no. 106 of 1986.

Under section 44 of the Administrative Appeals Tribunal

Act, the appeal is, of course, confined to a question of law.

Although a ground of the notice of appeal originally raised the

2.

question whether subsections 10 and 11 of section 6AC provide exclusive definitions of the expression "disposed of" used in the section, the applicant expressly abandoned that ground, and accepted, for the purposes of the argument, that the sole criterion to be applied, to determine whether there had been a disposition or dispositions within the section, was that provided by subsections 10 and 11. On that basis, the only ground of appeal argued was the following: that the tribunal erred in law in deciding that the transfer of the respondent's interest in the land comprised in certain crown leases to her son Allan Barnes was "a course of conduct under which she ceased to engage in a

business" within the meaning of section 6AC(10) and (11) of the

Act.

To understand this ground, it is necessary to say something of the circumstances. The respondent and her husband farmed the land in question, and other land of the husband, for many years. Shortly before his death, her husband transferred his land to one of their sons, Allan. Allan entered into an oral share farming arrangement in 1963 or 1964 with the respondent, and it was reduced to writing on 1 March 1977. Under that agreement, as the learned deputy president said, the respondent was to receive half the gross income from grain sales, less half the cost of purchase and spreading of superphosphate. The respondent was responsible for rates and taxes, and toa provide materials for fencing and certain other improvements. On the termination of the period of the agreement, it was continued by an oral agreement on the same terms. Over the last five