Whittaker v Australian Retirement Trust Pty Ltd

The plaintiff brought a claim in the Supreme Court of Queensland involving issues properly within the jurisdiction of the Federal Court of Australia (being special federal matters and an alleged constitutional issue), and which his Honour was required by legislation to transfer to that Court. The issue which arises for noting is whether notices were required to be given to the Federal and State Attorneys-General before such a transfer was made pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and the Judiciary Act 1903 (Cth). His Honour concluded not, on the bases that the Supreme Court of Queensland was not to retain the matter, and because no consideration of the merits of the plaintiff’s constitutional claim was to be undertaken by the Supreme Court of Queensland prior to the transfer of the proceedings.

Henry J

5 September 2025

The plaintiff had filed a claim in the Supreme Court of Queensland; relevantly for this note, that claim involved a “special federal matter” for the purposes of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (“Cross-Vesting Act”) (being a writ of prohibition sought against the Commissioner of Taxation) and a declaration that certain provisions of the Income Tax Assessment Act 1936 (Cth) were contrary to s 55 Constitution. [1], [8]–[9]. The defendants sought to transfer the proceedings to the Federal Court of Australia. [2]–[3].

His Honour determined that he was required to transfer the proceedings to the Federal Court of Australia. [14]. The issue which arises for noting is whether, because of s 6(4) of the Cross-Vesting Act and/or 78B Judiciary Act 1903 (Cth) (“Judiciary Act”), the court was required to provide notices to the Federal and State Attorneys-General. [15].

Whether notices were required by the Cross-Vesting Act

Sections 6(3) and 6(4) (s 6 being concerned with the compulsory transfer of special federal matters to federal courts) of the Cross-Vesting Act provide:

(3)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 particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.

(4)Before making an order under subsection (3), the court must be satisfied that:

(a)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

(b)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.

His Honour concluded that the purpose of s 6(4) was that notices would be provided where a State court was minded to retain a proceeding involving a special federal matter, and that it does not require notices in circumstances (as was the case here) where the court has concluded that a transfer to a Federal court is required. [18]–[19].

Whether notices were required by the Judiciary Act

Section 78B(1) Judiciary Act provides:

(1)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.

Considering the context of the provision, his Honour concluded that the meaning of the phrase “to proceed in the cause”, should properly be read as meaning to proceed in a hearing concerning the merits of a matter arising under the Constitution or involving its interpretation. [21]–[34]. As the determination of whether or not these proceedings must be transferred did not involve any determination of the merits of the plaintiff’s constitutional claim, it followed that no notice was required by s 78B Judiciary Act and that whether directions should be given was properly a matter for the discretion of the Court to which the case was being transferred. [34]–[35].

Disposition

His Honour made orders transferring the proceedings without making directions that notices be provided to the Attorneys-General. [39].

B Wilson of Counsel