Florence Chen represented the First Defendant, instructed by King & Wood Mallesons.
The Plaintiff filed a claim in the Supreme Court of Queensland against the First Defendant, Australian Retirement Trust, 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 of Taxation, firstly, he seeks a declaration that s 202(1) of the Income Tax Assessment Act 1936 (Cth) contradicts s 55 of the Constitution and is therefore void and of no effect. Secondly, he seeks a writ of prohibition prohibiting the Commissioner’s administration of pt 25A of the Superannuation Industry (Supervision) Act 1996 (Cth).
The First and Second Defendant filed conditional notices of intention to defend on the basis that the Supreme Court did not have jurisdiction to hear the matters, being Special Federal Matters. The issue for determination was whether the proceeding should be transferred to the Federal Court, to which it was held the proceeding must be transferred to the Federal Court per s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) . The second issue was whether it is necessary that notices be served on the Commonwealth and State’s Attorneys-General, and allowance of a reasonable period of time for them to consider whether they wish to make submissions in relation to the proceeding, before transferring the matter to the Federal Court. The Court considered the statutory interpretation of ss 6(4) and 6(6) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and s 78B(1) of the Judiciary Act 1903 (Cth) and held that directions in connection with the service of notices sought in relation to the Plaintiff’s claim were unnecessary.
The judgment can be read by clicking here
