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[2025] ACTCA 28
procedural. The ACT Court of Appeal ordered under s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) that it determine the appeal, and under r 6(1) of the Court Procedures Rules 2006 (ACT)...
3 cited instruments linked from this judgment.
Although the appeal potentially arose from a matter involving Commonwealth tax legislation, the ACT Court of Appeal decided it should hear the appeal itself. The appeal focused on the application of ACT procedural rules, the litigation had a lengthy and complex history in the ACT courts, and the Court was ready to hear it. The Court treated the special-reasons test as broad and dependent on the circumstances, and also waived the two-day notice requirement for the Commissioner's application.
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2,132 words · generated 06/10/2026
In Bennelong Medical Pty Ltd v Commissioner of Taxation (No 9) [2025] ACTCA 28, the ACT Court of Appeal dealt with a question about which court should determine Bennelong Medical Pty Ltd's appeal. The appeal arose from a decision of Mossop J in [2024] ACTSC 194. The judgment delivered on 29 July 2025 did not decide the substantive appeal. It decided that the appeal would remain in the ACT Court of Appeal, and dealt with a related question about notice of the Commissioner's application.
The Commissioner applied under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The application asserted that the appeal involved a “special federal matter” because it stemmed from a controversy about the meaning and operation of a provision of the Taxation Administration Act 1953 (Cth). The Commissioner argued that this brought the matter within the Federal Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) ([3]). The judgment noted that, apart from the qualification referred to in s 4(1)(d) of the Judiciary Act, the ACT Supreme Court had not been invested with jurisdiction to determine that special federal matter ([4]).
The statutory position described by the Court was that a proceeding involving a special federal matter must be transferred to the Federal Court under s 6(1), unless the court declines to make that order under s 6(3) because there are “special reasons” ([2], [4]). The Commissioner asked the Court to exercise that exception. The grounds included that the appeal was concerned with the application of ACT procedural rules, that the proceedings had a lengthy and complex history in the ACT courts, and that the Court was already convened and ready to hear the appeal ([8]–[9]).
The Court granted the application. It ordered that the appeal should be determined by the ACT Court of Appeal under s 6(3), and dispensed with the requirement under r 6(1) of the Court Procedures Rules 2006 (ACT) to serve notice of the application at least two days before the return date ([14]). Kelly and Muller AJJ agreed with McCallum CJ's reasons ([12]–[13]).
The Court's central interpretive point was that “special reasons” is a broad, context-dependent standard, not a closed checklist. McCallum CJ referred to the NSW Court of Appeal's decision in Huynh v Attorney-General [2023] NSWCA 190. As recounted in this judgment, Huynh observed that neither the High Court nor an intermediate appellate court had, before that decision, given authoritative guidance on the construction of “special reasons” in s 6(3) of the Cross-vesting Act ([6]). Huynh considered analogous expressions, including “special circumstances” and “special reasons” in other statutory settings. The judgment refers in that connection to Baker v The Queen [2004] HCA 45; 223 CLR 513 ([6]–[7]).
McCallum CJ adopted the broad approach described in Huynh: statutory expressions such as “special circumstances” and “special reasons” indicate that Parliament did not intend the discretion to be confined by an exhaustive list. Instead, a range of circumstances may be relevant, depending on the case ([7]–[8]). The judgment does not set out a general hierarchy among possible considerations or say that any one consideration is necessarily sufficient by itself.
The Court then related that approach to the specific appeal. First, it accepted that the underlying proceedings potentially raised an issue about the operation of the Taxation Administration Act, while recognising that the nature of those proceedings was “not entirely clear” ([5]). But it distinguished that potential federal character from the matter actually before it: the appeal concerned Mossop J's application of the ACT Court Procedures Rules, whose interpretation was properly a matter for the ACT Court of Appeal ([8]). This did not mean the Court decided the appeal's substantive issues. It was a reason relevant to forum.
Second, the Commissioner relied on the proceedings' “lengthy and complex history” and the fact they had been before the ACT Court of Appeal on a number of occasions. The Commissioner submitted that it would be inappropriate to burden another court with the proceedings at that stage ([9]). Third, the Court was already convened and ready to determine the appeal ([9]). McCallum CJ considered the circumstances together and concluded that it was appropriate to make the requested order ([10]).
The judgment's reasoning is therefore practical and case-specific. It confirms that the special-reasons discretion is broad, then applies that discretion to the procedural focus and litigation history of this appeal. It does not hold that a familiar local court, prior involvement, or readiness to hear a case will always justify declining transfer.
The judgment describes the legal setting by reference to s 6 of the Cross-vesting Act. Section 6(1) provides for transfer of proceedings involving a “special federal matter” to the Federal Court. Section 6(3) allows the court to decline to transfer if there are “special reasons” ([2]). The Commissioner characterised the appeal as involving such a matter because of its connection with the Taxation Administration Act ([3]).
As to the meaning of “special reasons”, McCallum CJ stated that Huynh had noted the absence, before its 2023 decision, of authoritative High Court or intermediate appellate court guidance on the phrase in the specific context of s 6(3) ([6]). Huynh drew guidance from analogous uses of expressions such as “special circumstances” and “special reasons”. This ACT Court of Appeal judgment relies on that discussion and states that the resulting discretion is broad and dependent on the circumstances of the case ([7]–[8]).
The judgment does not say that the statutory test changed on 29 July 2025. Nor does it purport to establish an exhaustive catalogue of what qualifies as special reasons. Its contribution, on the material given, is to apply the broad approach to the circumstances of this appeal and identify several considerations that together supported retention in the ACT Court of Appeal: the appeal's focus on ACT procedural rules, the proceedings' history, and the Court's readiness to hear it ([8]–[10]).
The document provides no later decisions and no account of how later courts have treated this judgment. It is therefore not possible from this source to describe any subsequent development or reception of the decision.
At [2], the judgment sets out the statutory starting point: proceedings involving a special federal matter are to be transferred to the Federal Court, subject to the court's power to decline transfer for special reasons. In plain English, the Federal Court is the default forum where the statutory condition is met, but the Act preserves a discretion to keep a proceeding in the existing court in a sufficiently particular case.
At [7], the Court explains the relevance of analogous statutory expressions. A phrase such as “special reasons” does not limit a judge to a predetermined set of circumstances. In plain English, the court can consider different features of different cases rather than applying a closed list.
At [8], McCallum CJ says: “the discretion to make an order under s 6(3) of the Cross-vesting Act is broad and will depend on the circumstances of the case.” This is the judgment's clearest statement of the applicable approach. It directs attention to the case-specific circumstances, but does not define an exhaustive legal test beyond that.
Also at [8], the Court states that the appeal concerned Mossop J's application of the ACT Court Procedures Rules, “the interpretation of which is properly a matter for this Court.” In plain English, although the underlying dispute potentially had a Commonwealth taxation dimension, the appeal then before the Court was focused on ACT procedure. That local procedural focus counted in favour of the ACT Court of Appeal hearing it.
At [9], the Court records the other grounds relied on by the Commissioner: the proceedings' lengthy and complex history, prior appearances before the ACT Court of Appeal, and the fact that the Court had convened and was ready to determine the matter. These were not treated as standalone rules. They were relevant circumstances in the exercise of the broad discretion.
At [10], the Court states its conclusion and notes that the Territory and Commonwealth Attorneys-General had received notice under s 6(4), but did not wish to be heard. That records compliance with the statutory notice step and the absence of submissions from those Attorneys-General on the application.
The judgment is most directly relevant to a procedural situation in which a proceeding is said to involve a special federal matter, so that s 6(1) of the Cross-vesting Act would ordinarily require transfer to the Federal Court, but a party asks the court to retain the proceeding under s 6(3). The decision illustrates the sort of case-specific considerations that may be raised in that application.
One potentially relevant pattern is where the underlying proceeding concerns Commonwealth legislation, but the particular appeal is focused on a question about the existing court's own procedural rules. Here, the underlying matter was said to involve the Taxation Administration Act, while the appeal concerned the ACT Court Procedures Rules ([3], [8]). The judgment does not say that this distinction alone necessarily establishes special reasons.
A second potentially relevant pattern is a proceeding with a lengthy and complex history in the court already dealing with it, including prior appearances in that court. A third is where the court is convened and ready to determine the matter. Both considerations were relied on by the Commissioner and accepted as part of the overall circumstances ([9]–[10]).
The limits matter. This is a decision on the forum for one appeal, not a decision on the substantive tax dispute. It does not establish that all appeals involving local procedural rules should remain in a state or territory court. It also does not say that a long procedural history or a court's readiness will invariably amount to special reasons. The judgment expressly describes the discretion as dependent on the circumstances ([8]).
The supplied judgment contains no discussion of later decisions treating Bennelong Medical [2025] ACTCA 28 as precedent. Because it was decided on 29 July 2025, this judgment itself cannot report later treatment unless such treatment is included in the source, and none is provided. Accordingly, no claim about whether later courts have followed, distinguished, or applied it can be grounded in this text.
The authorities the Court did discuss are earlier decisions. Huynh v Attorney-General [2023] NSWCA 190 is the principal interpretive authority mentioned. McCallum CJ describes the reasoning of Bell CJ, with whom Kirk JA and Simpson AJA agreed, concerning the broad and non-exhaustive nature of “special reasons” and cognate expressions ([6]–[8]). Baker v The Queen [2004] HCA 45; 223 CLR 513 is mentioned as a High Court decision addressing a cognate expression in the context of the Sentencing Act 1989 (NSW) ([6]). The judgment does not independently set out Baker's facts or reasoning; its account of that authority is mediated through the discussion in Huynh.
The decision under appeal, Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194, is identified at [1]. Another proceeding, Bennelong Medical Pty Ltd v Commissioner of Taxation [2025] ACTCA 27, is cited for the refusal of a director's application for leave to appear for the company ([1]). Neither is discussed as authority on the construction of “special reasons”.
The judgment leaves open how the broad discretion should be applied in circumstances materially different from those before the Court. It does not specify whether any one of the factors relied on by the Commissioner would be enough on its own, or how a court should weigh them against considerations favouring transfer. Its conclusion rests on the circumstances as a whole ([8]–[10]).
The judgment also does not resolve the substantive character of Bennelong's underlying proceedings. McCallum CJ expressly said that their nature was “not entirely clear”, while considering it possible to accept that they related to the operation of the Taxation Administration Act ([5]). The decision was about forum, not about the Act's meaning or operation.
Nor does the judgment explain the boundaries of “special federal matter” beyond the Commissioner's characterisation and the Court's acceptance that the underlying proceedings potentially raised a question about the tax legislation ([3], [5], [8]). It does not decide the substantive appeal, and its orders should not be read as determining the merits of Bennelong's challenge to the decision below.
Finally, the source does not provide later judicial treatment of the decision. Any account of whether subsequent courts have adopted or limited its approach would require material beyond this judgment. This is general legal information, not legal advice. Zoe can make mistakes, and before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 9) Citation: [2025] ACTCA 28 Hearing Date: 29 July 2025 Decision Date: 29 July 2025 Before: McCallum CJ, Kelly and Muller AJJ Decision: (1) Pursuant to s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the appellant’s appeal should be determined by this Court. (2) Pursuant to r 6(1) of the Court Procedures Rules 2006 (ACT), the requirement to serve notice of this application at least 2 days prior to return date to be dispensed with. Catchwords: APPEAL – JURISDICTION – Transfer of proceedings – Cross-vesting legislation – where proceedings involve “special federal matter” – where court may decline where there are “special reasons” for doing so – interpretation of “special reasons” Legislation Cited: Court Procedures Rules 2006 (ACT) rr 30(4) Judiciary Act 1903 (Cth) s 39B(1A)(c) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3(1), 6 Taxation Administration Act 1953 (Cth) Sentencing Act 1989 (NSW) Cases Cited: Baker v The Queen [2004] HCA 45; 223 CLR 513 Bennelong Medical Pty Ltd v Commissioner of Taxation [2025] ACTCA 27 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194 Huynh v Attorney-General [2023] NSWCA 190 Parties: Bennelong Medical Pty Ltd (Appellant) Commissioner of Taxation (Respondent) Representation: Counsel S Wright (Respondent) Solicitors Australian Government Solicitor (Respondent) File Number: ACTCA 19 of 2024 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 21 June 2024 Case Title: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) Citation: [2024] ACTSC 194 Court File Number: SC 1 of 2023 McCALLUM CJ: EX TEMPORE REASONS (REVISED):
In these proceedings, Bennelong Medical Pty Ltd appeals from a decision of Mossop J: see Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194. The respondent to the appeal is the Commissioner of Taxation. Bennelong is unrepresented today, one of its directors having sought leave to appear under r 30(4) of the Court Procedures Rules 2006 (ACT) and having been refused leave at the outset of the hearing: see Bennelong Medical Pty Ltd v Commissioner of Taxation [2025] ACTCA 27.
The Commissioner has this morning filed in court an application in proceeding arising from the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Section 6(1) of that Act provides that proceedings that involve a “special federal matter” within the definition in subsection (e) of s 3(1) of the Act must be transferred to the Federal Court of Australia unless the court makes an order under s 6(3). Section 6(3) provides that the court may decline to make an order under s 6(1) if there are “special reasons” for doing so.
The application is supported by an affidavit affirmed by Michael Lawrence Wright on 28 July 2025. Mr Wright sets out the grounds for the application being, firstly, that the appeal concerns a special federal matter within the meaning of s 3(1) of the Cross-vesting Act because it stems from a controversy in relation to the meaning and operation of a provision of the Taxation Administration Act 1953 (Cth). As a result of that characterisation of the matter in the court below, it is a matter arising under a law of the Commonwealth Parliament and is accordingly within the original jurisdiction of the Federal Court of Australia pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
Furthermore, Mr Wright notes that apart from s 4(1)(d) of the Judiciary Act, the Supreme Court of the Australian Capital Territory has not been invested with jurisdiction to determine this special federal matter. It follows that unless this Court is satisfied that there are special reasons in the circumstances of this proceeding, other than reasons relating to the convenience of the parties which justify its determination by this Court, the Court must transfer the proceedings to the Federal Court.
Mr Wright notes that the proceedings, to the extent that it is possible to understand the relief sought by Bennelong Medical Pty Ltd – that is my interpolation – appear to relate to the operation of the Taxation Administration Act. The nature of the underlying proceeding is not entirely clear, but it is at least possible to accept or appropriate to accept that contention.
The special reasons requirement is one that has been the subject of discussion by the New South Wales Court of Appeal in a decision of Huynh v Attorney-General [2023] NSWCA 190. The principal judgment in that case was written by the Chief Justice, the Honourable Chief Justice Andrew Bell, with whom Kirk JA and Simpson AJA agreed at [55] and [56] respectively. His Honour noted that neither the High Court nor any intermediate appellate court had, before the date of that judgment, provided any authoritative guidance as to the construction of the phrase “special reasons” in the specific context of s 6(3) of the Cross-vesting Act. His Honour noted, however, that cognate expressions had been considered in other jurisprudence, including in relation to the Sentencing Act 1989 (NSW) in the decision of the High Court in Baker v The Queen [2004] HCA 45; 223 CLR 513.
His Honour proceeded to discuss a number of other decisions making a similar point. The principle to be drawn from those decisions being that the use of a formula such as “special circumstances” or “special reasons” reflect an intention of Parliament that the judicial discretion not be confined by any exhaustive list and instead be understood as one which contemplates a variety of circumstances of potential relevance. The Commissioner referred to a number of other decisions, but I do not think it is necessary to go to those.
In short, it is clear that the discretion to make an order under s 6(3) of the Cross-vesting Act is broad and will depend on the circumstances of the case. In the present case, the Commissioner relies on the fact that although the substantive matter in the underlying proceedings potentially raises the question of the proper construction of the Tax Administration Act. The present appeal is concerned with Mossop J's application of the Court Procedures Rules, the interpretation of which is properly a matter for this Court.
Secondly, the Commissioner relies on the fact that the proceedings have a lengthy and complex history and have been before this Court on a number of occasions. It would be inappropriate in those circumstances to burden another court with the proceedings today. Thirdly, the Commissioner relies on the fact that the Court has convened and is ready to determine the appeal today.
In all the circumstances, I am of the view that it is appropriate to make the order sought in [1] of the application, which is that pursuant to s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act, the appellant's appeal should be determined by this Court. I note in reaching that conclusion that the Commissioner has complied with the requirements of s 6(4) of the Cross-vesting Act to give notice to the Attorney-General of the Territory and the Commonwealth Attorney-General. Both of those Attorneys-General has responded to the Commissioner's letter by indicating that they do not wish to be heard on the issues to be raised in the proceedings.
Furthermore, I note that the Commissioner seeks an order pursuant to r 6(1) of the Court Procedures Rules dispensing with the requirement to serve notice of this application at least two days prior to the return date. It is appropriate to grant that ancillary relief in my view. KELLY AJ:
I agree. MULLER AJ:
I agree.
Orders
I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Bennelong Medical Pty Ltd
Commissioner of Taxation
The ACT Court of Appeal ordered under s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) that it determine the appeal, and under r 6(1) of the Court Procedures Rules 2006 (ACT) dispensed with the requirement to serve notice of the application at least two days before the return date ([14]).