Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Commonwealth Superannuation Scheme Board of Trustees v Kitching
[2004] FCAFC 299 SUPERANNUATION – retirement on grounds of invalidity – whether one condition 'connected with' another – whether causal relationship required. PRACTICE AND PROCEDURE – Appeal – no appeal against order – literal terms of order not wrong - order accompanied by erroneous statement of legal principle WORDS AND PHRASES – 'connected with' Superannuation Act 1976 (Cth), ss 16, 66 Superannuation Act 1990 (Cth), s 6 Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 12, 13, 37 Baxter Healthcare Pty Limited v Comptroller General of Customs (1997) 72 FCR 467 referred to Commissioner for Superannuation v Miller (1985) 8 FCR 153 referred to Commissioner for Superannuation v Perrett (1989) 23 FCR 425 referred to Commissioner of Superannuation v Benham (1989) 22 FCR 413 referred to Perrett v Commissioner for Superannuation (1991) 29 FCR 581 applied Secretary Department of Social Security v Lowe (1999) 92 FCR 26 applied Commonwealth Superannuation Scheme Board of Trustees v John andrew Kitching W 120 of 2004 RD NICHOLSON, JACOBSON AND BENNETT JJ 18 November 2004 pERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY W 120 of 2004
On appeal from a single judge of the Federal Court of Australia
BETWEEN: COMMONWEALTH SUPERANNUATION
SCHEME BOARD OF TRUSTEES
APPELLANT
AND: JOHN ANDREW KITCHING
RESPONDENT
JUDGES: RD NICHOLSON, JACOBSON & BENNETT JJ
DATE OF ORDER: 18 NOVEMBER 2004
WHERE MADE: PERTH
THE COURT ORDERS THAT: 1. The appeal be allowed; 2. Order 1 of the orders made by the primary judge on 18 May 2004 be set aside; and 3. Substitute in lieu of order 1 the following order:- "The decision of the Superannuation Complaints Tribunal made 16 May 2002 be set aside and the matter be remitted to the Tribunal for determination according to the reasons of the Full Court given on 18 November 2004." 4. No order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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