Merlino v CSS Board [2003] FCA 1490

FEDERAL COURT OF AUSTRALIA

Merlino v CSS Board [2003] FCA 1490 SUPERANNUATION - appeal from determination of Superannuation Complaints Tribunal - superannuation funds -decision to permanently leave employment with the public service - late election - preservation of superannuation benefits - appeal to Federal Court on questions of law - (CTH) Superannuation Act 1976 ss 137, 157 - Factors relevant to s 157 discretion - (CTH) Superannuation (Resolution of Complaints) Act 1993 - Tribunal required to affirm decision if satisfied that it was fair and reasonable in circumstances - meaning of "fair and reasonable" - effect of failure to advise contributing employees of right to elect - circumstances in which time for election should be extended - appellant would not have acted differently even if advised of the right to elect - Form S2A - failure to roll over entitlements a relevant circumstance - no substantial commitment to the public service - appeal dismissed. Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14(2), 14AA(1), 37(1), 37(3), 37(4), 37(6) and 46(1) Superannuation Act 1976 (Cth) ss 80(1), 137(1), 153AR, 153AS and 157(1)

National Mutual Life Association of Australia Ltd v Jevtovic, (unreported, Sundberg J, 8 May 1997) cited Adkins v The Health Employees Superannuation Trust Australia Ltd (unreported, Heerey J, 15 August 1997) cited National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 cited Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 cited Chalk v Commissioner for Superannuation (1994) 50 FCR 150 discussed Watts v Rake (1960) 108 CLR 138 distinguished Commissioner for Superannuation v Adams (1997) 25 AAR 324 CHRISTOPHER ROBERT MERLINO v CSS BOARD N 619 OF 2003 TAMBERLIN J SYDNEY 16 DECEMBER 2003