Kear, Ronald Bruce v Secretary, Department of Social Security [1998] FCA 1087

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 4 of 1998

BETWEEN: RONALD BRUCE KEAR

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 31 august 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 4 of 1998

BETWEEN: RONALD BRUCE KEAR

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE: HEEREY J

DATE: 31 AUGUST 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT The respondent has taken out a notice of motion dated 24 March 1998 seeking orders that the appeal be dismissed as disclosing no reasonable cause of action or struck out pursuant to either O 20 r 2 or O 11 r 16 of the Federal Court Rules. I invited the applicant to indicate whether he was prepared to have the substantive appeal decided today. He said he was not, but having heard from him and the solicitor for the respondent I am satisfied that the notice of motion can be disposed of. The facts of this matter are set out in the decision of the Administrative Appeals Tribunal dated 11 December 1997 and I shall not repeat them. The applicant's amended notice of appeal was filed on 10 March 1998. Essentially he claims that he had a "claim of right" in relation to the Echuca property, that he did not receive any income for his own personal use, and that there was a breach of natural justice by the Tribunal. I am quite satisfied that this appeal is without substance. The Tribunal in my view correctly dealt with the matter on the basis that whatever arrangements the appellant might have had with Mrs Shields, the money he received from the agent for the Echuca property was his own money to deal with as he saw fit. If he had some other commitments or arrangements for which that money was earmarked, it was nonetheless money for his own use and/or benefit within the meaning of s 8(1) of the Social Security Act 1991 (Cth). The criminal law concept of claim of right is not relevant. As to the natural justice argument, it is plain that the applicant was given every opportunity to present any evidence he wished to the Tribunal. On the respondent's notice of motion I order that the application be dismissed. There will be an order that the applicant pay the respondent's costs of the application.