Whittaker v Australian Retirement Trust Pty Ltd
[2025] QSC 221
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Whittaker v Australian Retirement Trust Pty Ltd[2025] QSC 221
- Add to List
Whittaker v Australian Retirement Trust Pty Ltd[2025] QSC 221
Whittaker v Australian Retirement Trust Pty Ltd[2025] QSC 221
SUPREME COURT OF QUEENSLAND
CITATION: | Whittaker v Australian Retirement Trust Pty Ltd [2025] QSC 221 |
PARTIES: | MARK ALAN WHITTAKER (Plaintiff) v AUSTRALIAN RETIREMENT TRUST PTY LTD (ABN 88 010 720 840, AFSL NO. 228975) as trustee for AUSTRALIAN RETIREMENT TRUST (ABN 60 905 115 063) (First Defendant) and COMMISSIONER OF TAXATION (Second Defendant) |
FILE NO: | SC 17 of 2025 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 5 September 2025 |
DELIVERED AT: | Cairns |
HEARING DATE: | 18 June 2025; further submissions received from Plaintiff on 24 June 2025 and from First and Second Defendant on 25 June 2025 |
JUDGE: | Henry J |
ORDERS: |
|
CATCHWORDS: | COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – OTHER MATTERS – where the plaintiff seeks a number of remedies against the first defendant superannuation company and the second defendant Commissioner of Taxation – where one such sought remedy is a writ of prohibition against the Commissioner of Taxation prohibiting the Commissioner’s administration of pt 25A Superannuation Industry (Supervision) Act 1996 (Cth) – where both defendants dispute the jurisdiction of the Supreme Court of Queensland to hear the plaintiff’s claim – where the defendants seek a transfer of the proceedings to the Federal Court of Australia – whether the writ of probation is a ‘special federal matter’ – whether the Court should transfer the matter to the Federal Court of Australia. COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – OTHER MATTERS – where the plaintiff seeks a number of remedies against the first defendant superannuation company and the second defendant Commissioner of Taxation – where one such sought remedy is a writ of prohibition against the Commissioner of Taxation prohibiting the Commissioner’s administration of pt 25A Superannuation Industry (Supervision) Act 1996 (Cth) – where both defendants dispute the jurisdiction of the Supreme Court of Queensland to hear the plaintiff’s claim – where the defendants seek a transfer of the proceedings to the Federal Court of Australia – where the plaintiff contends that before such a transfer can occur, notice must be given to the Federal and State Attorney’s General – whether the Court can proceed in the transfer in the absence of such notice. Judiciary Act 1903 (Cth), s 38, s 39B, s 78B Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4, s 5, s 6 Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 6 ACCC v CG Berbatis Holdings (1999) 95 FCR 292, cited Amrit Lal Narain v Parnell (1986) 9 FCR 479, cited Luck v Secretary, Department of Human Services [2017] FCA 540, cited |
COUNSEL: | F Chen for First Defendant M Maynard for Second Defendant |
SOLICITORS: | Plaintiff conducted his own case King & Wood Mallesons for First Defendant Australian Government Solicitor for Second Defendant |
- [1]The plaintiff, Mr Whittaker, filed a claim in the Supreme Court of Queensland at Cairns against the first defendant superannuation company and the second defendant, Commissioner of Taxation. As against the superannuation company, he seeks declarations of breaches of obligations under Federal legislation and the payment of pecuniary penalties for those breaches. As against the Commissioner, firstly, he seeks a declaration that s 202(1) Income Tax Assessment Act 1936 (Cth) contradicts s 55 Constitution (Cth) and is therefore void and of no effect. Secondly, he seeks a writ of prohibition prohibiting the Commissioner’s administration of pt 25A Superannuation Industry (Supervision) Act 1996 (Cth).
- [2]The defendants filed conditional notices of intention to defend. They were conditional in that they disputed the jurisdiction of the court to hear the claim because the claim for writ of prohibition against the Commissioner is a matter in respect of which the Federal Court has original jurisdiction and this Court does not have jurisdiction in the absence of an order under s 6(3) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Both notices explained the defendants intended to apply to transfer the whole proceeding to the Federal Court.
- [3]The defendants each filed such applications, seeking a transfer of the proceedings to the Federal Court pursuant to ss 5(1) and 6(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Their applications also sought to rely on like provisions in the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) but, as it will be seen, it was sufficient to deploy the Commonwealth Act, indeed sufficient to rely only upon the operation of s 6(1), because that section’s effects are mandatory.
- [4]Mr Whittaker filed an application seeking an order that the conditional notices of intention to defend were ineffectual or, alternatively, directions requiring him to serve notice of the cause, ‘being one that is a special federal matter’, on the Commonwealth and State’s Attorneys-General, along with orders as to a timeframe for that process. As will become apparent, the reasons for the filing of conditional notices of intention to defend were correct and the notices were thus effectual. It will likewise become apparent that there is no legislative or discretionary need for this Court to give directions of the kind sought.
- [5]The hearing of the application identified two material issues for determination:
- Should the matter be transferred to the Federal Court?
- Is it necessary that notices be served on the Commonwealth and State’s Attorneys-General and time be allowed for them to have an opportunity to be heard before transferring the matter to the Federal Court?
Should the matter be transferred to the Federal Court?
- [6]Subject to the determination of issue 2, it is clear on the materials presently before the Court that the proceedings should forthwith be transferred to the Federal Court. Section 6(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) provides:
6.Special federal matters: general rules
- If:
- a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and
- the court does not make an order under subsection (3) in respect of the matter;
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).
- [7]Three points should be made in respect of s 6(1).
- [8]Firstly, it applies where there is a ‘special federal matter’ pending in this Court. Section 3 of the Act relevantly provides:
special federal matter means: …
- a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
- [9]The writ of prohibition sought against the Commissioner is a special federal matter. That is because, on the one hand, a matter in which a writ of prohibition is sought against an officer of the Commonwealth is within the original jurisdiction of the Federal Court pursuant to s 39B(1) Judiciary Act 1903 (Cth) and, on the other hand, because, ‘apart from’ the operation of the Cross-vesting Act, the Supreme Court would not have jurisdiction over such a matter. It would not have such jurisdiction because the general conferral of federal jurisdiction upon this Court, pursuant to s 39(2) Judiciary Act, is expressly conferred ‘except as provided in section 38’, and s 38(e) excludes matters in which a writ of prohibition is sought against an officer of the Commonwealth. Since this Court’s only jurisdiction to hear a matter within the original jurisdiction of the Federal Court derives from s 4(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), it follows the seeking of the prohibition is a special federal matter pending in the present proceeding.
- [10]The second point to highlight in respect of s 6(1) is its requirement that ‘the court must transfer the proceeding’, not merely that component of the proceeding which is a special federal matter. That requirement is subject to some qualification via s 6(1A) which provides the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction of the Federal Court. However, the entitlement to the relief sought by Mr Whittaker is all founded in federal legislation and accordingly all of the proceeding is within the jurisdiction of the Federal Court.
- [11]To remove doubt, it is a distraction in the present context that Mr Whittaker’s claim makes reference to s 43 of Queensland’s Acts Interpretation Act, dealing with amounts recoverable because of the imposition of a penalty. That is because the source of the power relied on to impose a penalty in the first place is, on Mr Whittaker’s own case, federal legislation. The result is that, if there is to be a transfer as sought, it will be a transfer of the whole proceeding.
- [12]The third point of note in respect of s 6(1) is that it does not apply in the event the court makes an order under s 6(3) in respect of the matter. That subsection provides:
- The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
- [13]The only special reason advanced by Mr Whittaker in this context is that Mr Whittaker is seeking to apply to the High Court for removal of part of the cause now pending before this Court, to the High Court. That is not a special reason, it being illogical that the plaintiff’s desire to remove part of the matter constitutes a special reason for the matter to stay put and be determined by this Court. Moreover, there can be no other special reason arising. Indeed, Mr Whittaker’s own affidavit filed 13 June 2025 annexes a copy of his application for removal which, at para 12, states ‘there are no special reasons for not removing this special federal matter’.
- [14]It follows that, subject to determination of the second issue in the proceeding, this Court must transfer the proceeding to the Federal Court.
Is it necessary that notices be served on the Commonwealth and State’s Attorneys-General and time be allowed for them to have an opportunity to be heard before transferring the matter to the Federal Court?
- [15]The potential need for the giving of notices to the Commonwealth and State’s Attorneys-General and allowance of a reasonable period for them to consider whether they wish to make submissions in relation to the proceeding, is submitted to arise in two ways. One is out of s 6(4) and (6) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The other is out of s 78B(1) Judiciary Act 1903 (Cth).
Notices under Jurisdiction of Courts (Cross-vesting) Act not required here
- [16]Subsections (4) and (6) of s 6 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) provide:
- Before making an order under subsection (3), the court must be satisfied that:
- a written notice specifying the nature of the special federal matter has been given to the Attorney‑General of the Commonwealth and the Attorney‑General of the State or Territory where the proceeding is pending; and
- a reasonable time has elapsed since the giving of the notice for the Attorneys‑General to consider whether submissions to the court should be made in relation to the proceeding. …
- In considering whether there are special reasons for the purposes of subsection (3), the court must:
- have regard to the general rule that special federal matters should be heard by the Federal Court or a court …, whichever is appropriate in the particular case; and
- take into account any submission made in relation to the proceeding by an Attorney‑General mentioned in subsection (4).
- [17]Counsel for the Commissioner contends that as soon as a plaintiff asserts there are special reasons within the meaning of s 6(3), it has the consequence under s 6 that written notices of the kind contemplated by s 6(4) would need to be given, followed by the relevant reasonable time elapsing. But that is to treat the mere assertion of the existence of a special reason, in respect of which I have already found there is no substance, as if it constitutes special reasons. True it is under sub-s (6) the court, in considering whether there are special reasons, must take into account ‘any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4)’. However, that does nothing more than require the court to take account of a submission that has been made. It does not mandate that the notice, which may in turn trigger the making of a submission, must be given.
- [18]The requirement for the giving of such a notice arises only under sub-s (4). Under that provision, the court must be satisfied such a notice has been given and a reasonable time has elapsed, ‘Before making an order under subsection (3)’. Thus, the event under contemplation, in the opening words of sub-s (4), is the making an order under sub-s (3). If, as is the case here, the court is not minded to potentially make an order under sub-s (3), there is no need for it to be satisfied that the notice requirements have been complied with.
- [19]Such an interpretation accords with the ordinary meaning of the words used in the provision. Moreover, it is consistent with the context to which the provision applies. It is dealing with the transfer of a matter from the State Supreme Court to the Federal Court. If the court does not have in mind making an order under sub-s (3), so that the sub-s (3) exception does not apply and the court is going to transfer the proceeding to the Federal Court, it is inherently unlikely that any Attorney-General will have an interest in making submissions. Rather, it is only if the court is minded to make an order under sub-s (3) so that, in an exception to the mandatory requirements of s 6(1), the matter will remain before the State court, that any Attorneys-General would be potentially interested in making submissions in order to dissuade the court from taking that exceptional course and, instead, do as s 6(1) mandates and transfer the matter. Accordingly, s 6(4) and (6) provoke no need in the present circumstances for notification of the Attorneys-General.
Notices under Judiciary Act not required here
- [20]The other provision prompting the potential need for notices to be given to the Attorneys-General is s 78B(1) Judiciary Act 1903 (Cth). It provides:
78BNotice to Attorneys-General
- Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
- [21]It will be recalled Mr Whittaker seeks a declaration as against the Commissioner that s 202(1) Income Assessment Act 1936 (Cth) contradicts s 55 Constitution (Cth) and is therefore void and of no effect. That triggers the potential application of s 78B(1). Section 78B(1) obliges the court not to proceed ‘in the cause’ unless satisfied notice of the cause has been given to the Attorneys-General and a reasonable time has passed thereafter. Note the provision does not require the court to order a party to give such notices or prevent the parties giving such notices of their own volition. Rather, it prevents the court from proceeding in the cause unless such notice has been given and a reasonable time has passed.
- [22]Section 78B(1)’s relevance to the present issue depends in part upon what is meant by ‘cause’ in the context of s 78B. It appears from the Judiciary Act that a cause may include an interlocutory application or incidental proceeding in a cause. Section 2 of the Act defines ‘cause’ to include ‘any suit’. It in turn defines ‘suit’ to include ‘any action or original proceeding between parties’. The proceeding filed by Mr Whittaker is a claim and thus an ‘original proceeding’ and his application and the applications of the defendants appear to come within the apparently broad meaning of an ‘action’. This suggests, and I accept, that a cause may include an interlocutory application.
- [23]However, the ‘cause’ referred to in s 78B(1) is not referred to in contextual isolation. That context includes the operative language of the section providing the court’s duty is not to proceed ‘in’ a cause which ‘involves a matter arising under the Constitution or involving its interpretation’ unless the requisite notice to Attorneys-General has been given.
- [24]The purpose of s 78B(1) is to ensure Attorneys-General know of and have an opportunity to consider ‘the question of intervention in the proceedings or removal of the cause to the High Court’. The need for that opportunity does not arise in a vacuum. It only arises if there is otherwise a real prospect of the court proceeding in a hearing concerning the merits of the ‘matter arising under the Constitution or involving its interpretation’, thus potentially depriving the Attorneys-General of exercising an opportunity to first be heard or of removing the proceedings to the High Court. There is no prospect whatsoever of this Court proceeding in hearing such a matter. As these reasons have already explained, the entire claim, not just that part of it relating to the alleged constitutional matter, does not belong in this Court.
- [25]Interpreting s 78B(1)’s words, ‘to proceed in the cause’, considering their context and the section’s purpose, suggests those words mean to proceed in a hearing concerning the merits of a matter arising under the Constitution or involving its interpretation. I will refer to this interpretation as the purposeful interpretation.
- [26]Pursuant to s 2 of the Act a ‘matter’ includes ‘any incidental proceeding in a cause or matter’ but note that the ‘matter’ referred to in s 78B(1) is a ‘matter arising under the Constitution or involving its interpretation’. The present applications, being interlocutory in character, may be characterised as incidental proceedings and thus matters. But they are not matters arising under the Constitution or involving its interpretation. They are mere disputes about the logistics of the process of transferring Mr Whittaker’s claim to the Court in which it belongs.
- [27]Where, as here, the court is to decide an interlocutory proceeding unconcerned with the merits of a matter arising under the Constitution or involving its interpretation, then s 78B’s purpose is not engaged.
- [28]The position could be different if determination of an interlocutory issue requires consideration of the merits of such a matter. In that situation the potential interests of Attorneys-General in being heard might be enlivened and s 78B may arguably preclude the court from proceeding, until satisfied of the giving of notice and temporal opportunity to intervene or remove to the Attorneys-General. I say ‘arguably’ because there exists authority suggesting that s 78B only operates where the alleged constitutional point has potential substance and not merely because of the bare assertion of the point.[1] However, I express no concluded view about that because there is no need in considering the present applications to even provisionally consider the merits of the constitutional argument Mr Whittaker is pursuing.
- [29]In that respect the present situation is like Luck v Secretary, Department of Human Services,[2] where Kerr J considered s 78B had no application to his consideration of a recusal application, the determination of which was not concerned with the merits of the constitutional issues contended for by the appellant.[3]
- [30]The contextually purposeful interpretation is consistent with other content of s 78B. For example, s 78B(5) provides:
- Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
- [31]There is no suggestion that any of the applications here require the grant of urgent relief of an interlocutory nature, so sub-s (5) does not apply. But it informs the meaning of s 78B. If a proceeding of an interlocutory nature could not come within the meaning of ‘cause’ within the meaning of sub-s (1) of s 78B, then there would be no need for the inclusion of sub-s (5) of s 78B. Its inclusion, to excuse urgent interlocutory applications from the breadth of s 78B(1), would make no sense unless the hearing of an interlocutory application could have the potential to involve proceeding in the cause. As just explained, an interlocutory application could have that potential if its determination required the court to proceed with determining the merits of a matter arising under the Constitution or involving its interpretation.
- [32]Section 78B(2) also supports the purposeful interpretation of s 78B. It provides:
- For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
- (a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
- (b)may direct a party to give notice in accordance with that subsection; and
- (c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
- [33]The present significance of s 78B(2)(c) is that it contemplates the court may adjourn proceedings ‘in the cause’ yet continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. Section 78B(2)(c)’s practical effect therefore is that, ‘For the purposes of subsection (1)’ of s 78B(1), to proceed in the cause means to proceed to ‘hear evidence and argument concerning …any matter arising under the Constitution or involving its interpretation’. That reflects the purposeful interpretation.
- [34]I find that ‘to proceed in the cause’, in s 78B(1), means to proceed in a hearing concerning the merits of a matter arising under the Constitution or involving its interpretation. Section 78B(1) has no relevance to my hearing and determination of the present applications because they do not concern the merits of Mr Whittaker’s constitutional matter.
- [35]In light of the conclusions I have reached, it is unnecessary for me give any directions in connection with the service of notices as sought in Mr Whittaker’s application. Notice can given without the need for the Court to direct it. Further, whether directions should be given, in connection with the giving of notice or what may follow it, is properly a matter for the discretion of the Court to which the case is being transferred.
Orders
- [36]The claim must be transferred to the Federal Court.
- [37]It remains to determine what costs orders should be made. To remove doubt, the transfer order does not, and is not intended to, remove or transfer this Court’s continuing obligation to make appropriate orders as to costs arising from the hearing and determination of the applications which were before it.
- [38]The usual course would be that costs should follow the event, that is, that Mr Whittaker should pay the defendants’ costs to be assessed on the standard basis. However, I will allow the parties an opportunity to be heard as to costs, if costs are not agreed.
- [39]My orders are:
- The application of the plaintiff filed 21 March 2025, and in amended form on 13 June 2025, is dismissed.
- The first defendant’s application for transfer filed 26 March 2025 and the second defendant’s application for transfer filed 27 March 2025 are granted.
- The proceeding commenced by the plaintiff’s claim filed 14 February 2025 is transferred to the Federal Court of Australia pursuant to s 6(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
- I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 15 October 2025 with out of town parties having leave to appear by videolink and the hearing being allocated 45 minutes in the applications list.
Footnotes
[1]Amrit Lal Narain v Parnell (1986) 9 FCR 479, 489; ACCC v CG Berbatis Holdings (1999) 95 FCR 292, 297 [13].
[2][2017] FCA 540, [31]-[33].
[3]To remove doubt, no relevant interpretative assistance is gained from cases in which there was agreement (even if only precautionary) and no considered judicial decision, regarding the need for notices – eg. Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (no 3) (2010) 184 FCR 516, [13]; Coshott v Crouch [2018] NSWSC 853, [9].