FEDERAL COURT OF AUSTRALIA

Inger v State of Queensland [2026] FCA 792

ORDERS

THE COURT ORDERS THAT:

Leave to file notice of discontinuance

1.    Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Applicants have leave to file a notice of discontinuance in this proceeding subject to the Applicants completing the notice procedure to group members set out in Orders 4 to 7 below.

2.    Subject to:

(a)    Order 1 being made;

(b)    the Applicants completing the notice procedure to group members set out in Orders 4 to 7 below; and

(c)    the Applicants filing a notice of discontinuance in this proceeding,

by consent between the Applicants and the Respondents, this proceeding be discontinued.

3.    Pursuant to s 33V(1) and s 33ZF of the FCA Act, any limitation periods that may apply to the claims of the group members against the Respondents to which the proceeding relates begin to run again from the date 30 days after the date by which the Applicants are required to file a notice of discontinuance.

Notice procedure

4.    The Applicants are to attend to the following steps:

(a)    Send an email to the email addresses listed by all persons who, by no later than 20 May 2026, registered as a potential group member in this proceeding on the website created for that purpose (Website). The email is to attach a document in substantially the form as the notice annexed as Annexure A (Notice to Participating Group Members). The Notice to Participating Group Members is to include a notice of objection to the discontinuance (Notice of Objection); and

(b)    On a date no later than the date that the email referred to at Order 4(a) is sent, update the Website so that potential group members can download the Notice to Participating Group Members.

5.    Provided that the Notice to Participating Group Members is in substantially the form as the notice annexed as Annexure A:

(a)    it is a notice issued pursuant to s 33X(4) of the FCA Act; and

(b)    its form and content is approved pursuant to s 33Y(2) of the FCA Act.

6.    The solicitors for the Applicants must notify the solicitors for the Respondents and the Court of any Notices of Objection it has received, or that it has received no Notices of Objection, within ten (10) business days of the date that is 60 days after the date on which the email referred to at Order 4(a) is sent.

7.    The notice procedure is taken to be completed on:

(a)    the date referred to in Order 6 if no person returns a Notice of Objection; or

(b)    the date on which the Court determines that any Notices of Objection have been finally dealt with in circumstances where the Court determines it is appropriate that, notwithstanding the Notices of Objection, the Applicants should have leave to file a notice of discontinuance in this proceeding pursuant to s 33V(1) of the FCA Act.

Costs

8.    By consent, all costs orders in this proceeding be vacated and there be no further order in this proceeding as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

FEDERAL COURT OF AUSTRALIA

PROCEEDING NO: QUD716/2024

QUEENSLAND FOREIGN PERSON SURCHARGES CLASS ACTION

NOTICE TO PARTICIPATING GROUP MEMBERS

This notice contains important information about the proposed discontinuance of the Class Action. You should read this notice carefully as your legal rights may be affected by the proposed discontinuance. If there is anything in it that you do not understand, you should seek legal advice immediately.

1.    This notice is sent to you by order of the Federal Court of Australia (Court).

2.    This notice relates to the Class Action brought by Peter Glen Inger, Joanne Inger and Mark Bonnington (Applicants) on their own behalf and on behalf of all persons (Group Members) who:

(a)    made payments of taxes as debts purportedly due to the State of Queensland pursuant to assessments purportedly made by the Commissioner of State Revenue pursuant to the Taxation Administration Act 2001 (Qld) (and any penalties or interest purportedly imposed thereon) in respect of liabilities that purportedly arose:

(i)    on and after 1 October 2016 and prior to 8 April 2024 to additional foreign acquirer duty (AFAD), purportedly imposed by the Duties Act 2001 (Qld); and / or

(ii)    on and after 30 June 2019 and prior to 8 April 2024 to (foreign) absentee owner land tax surcharge (LTS), purportedly imposed by the Land Tax Act 2010 (Qld);

(b)    being a natural person, at the time of a payment referred to in subparagraph (a) above, was a national, within the meaning of the relevant International Tax Agreement (i.e. tax treaty) between Australia and of any of the following countries:

(i)    Finland;

(ii)    Germany;

(iii)    India;

(iv)    Japan;

(v)    New Zealand;

(vi)    Norway;

(vii)    South Africa; and / or

(viii)    Switzerland,

(each being a Relevant Country); or

(c)    being a corporation at the time of a payment referred to in subparagraph (a) above was:

(i)    incorporated pursuant to the municipal laws of a Relevant Country, or otherwise a “national” of those States within the meaning of the relevant International Tax Agreement; or

(ii)    incorporated pursuant to the laws of the Commonwealth or a State or Territory thereof, and in respect of which the capital of the corporation was wholly or partly owned or controlled, directly or indirectly, by one or more:

A.    natural persons, who at the time of payment were resident in a Relevant Country; and / or

B.    corporations which at the time of payment were incorporated pursuant to the municipal law of a Relevant Country; or

(d)    persons who at the time of payment were otherwise a “resident” within the meaning of the International Tax Agreement of a Relevant Country.

Proposed discontinuance of the Class Action

3.    The purpose of this notice is to inform you that:

(a)    following the High Court of Australia’s decision in G Global 120E T2 Pty Ltd v Commissioner of State Revenue G Global 180Q Pty Ltd v Commissioner of State Revenue; G Global 180Q Pty Ltd v Commissioner of State Revenue; Stott v The Commonwealth of Australia [2025] HCA 39 (HCA Judgment), CASL, the funder of the Class Action, is of the view that it is no longer commercially viable to continue funding the Class Action;

(b)    the Respondents are agreeable to an order discontinuing the proceeding with no order as to costs if the Applicants agree to do so now;

(c)    the Applicants’ primary legal advisor, Kathryn Bertram, Partner of Johnson Winter Slattery, has advised the Applicants that she is of the view that there are no reasonable prospects for obtaining alternative funding, for reasons that include the following:

(i)    the HCA Judgment has substantially reduced, if not entirely eliminated, the scope of the available claims. Kathryn Bertram’s view is that:

A.    claims for LTS liabilities can no longer be maintained; and

B.    claims for AFAD liabilities that arose on and from 1 January 2018 can no longer be maintained;

(ii)    there is significant if not insurmountable difficulty in overcoming the remaining issues in dispute in the Class Action, principally because the remaining claims are outside the 1 year limitation period imposed by s 10A of the Limitation of Actions Act 1974 (Qld). Kathryn Bertram’s view is that it is not reasonably arguable that the 1 year limitation period does not apply to the remaining AFAD claims;

(iii)    it will be necessary to find new lead representatives which would be a time-consuming and costly exercise; and

(iv)    it is unlikely that the Respondents’ current offer, being that they are agreeable to an order discontinuing the proceeding with no order as to costs if the Applicants agree to do so now, would be made again;

(d)    the Applicants have agreed, subject to the approval of the Court, to the discontinuance of the Class Action (Proposed Discontinuance); and

(e)    you have a right to object or make submissions in relation to the Proposed Discontinuance.

4.    You have received this notice as you are considered to be a “Participating Group Member” because you:

(a)    registered by 20 May 2026 as a potential Group Member in the Class Action; and

(b)    have not previously elected to “opt-out” of the Class Action.

Effect of the proposed discontinuance

5.    If the Class Action is discontinued, the proceeding will be at an end.

6.    Thereafter, individual group members can choose to commence a proceeding in their own name against the Respondents in relation to the matters the subject of the Class Action, if any such proceeding were commenced within any applicable limitation period (noting what is said in paragraph 3(c)(ii) above).

7.    The starting of the Class Action against the Respondents suspended the running of whatever limitation period remained in relation to the claims of Group Members, by operation of s 33ZE of the Federal Court of Australia Act 1976 (Cth).

8.    Any remaining limitation period (noting what is said in paragraph 3(c)(ii) above) would start running again from 30 days after leave is given to discontinue the Class Action.

9.    As such, any Group Member who wishes to commence their own proceeding against the Respondents in respect of the claims to which the Class Action relates, should take urgent independent legal advice in relation to that proceeding and any applicable limitation period (noting what is said in paragraph 3(c)(ii) above).

Court approval process

10.    Before the Class Action can be discontinued, the Court must be satisfied that the Proposed Discontinuance is not unfair or unreasonable or adverse to the interests of the Group Members.

11.    As a Participating Group Member, you must choose one of the following options:

(a)    Do nothing if you are in favour of the Proposed Discontinuance (see Option A).

OR

(b)    Object to the Proposed Discontinuance (see Option B).

Option A

12.    If you are in favour of the Proposed Discontinuance of the Class Action, you do not need to do anything.

Option B

13.    If you object to the Proposed Discontinuance of the Class Action, you are entitled to ask the Court not to approve the discontinuance.

14.    In this case, you should complete and return the enclosed “Notice of Objection” (located at Schedule 1 to this notice) to Johnson Winter Slattery at one of the following addresses by [insert the date 60 days after the date that the email attaching the notice is sent]:

(a)    Johnson Winter Slattery
GPO Box 9831
Melbourne VIC 3000
Attention: Kathryn Bertram

OR

(b)    fpsclassaction@jws.com.au

15.    Should you return a completed Notice of Objection to Johnson Winter Slattery pursuant to paragraph 14, Johnson Winter Slattery will notify you once the Notice of Objection has been filed with the Court.

16.    After you have received the notification from Johnson Winter Slattery, you will need to:

(a)    file any evidence on which you rely and any written submissions with the Court by no later than a date to be advised (which in any event will be no earlier than 60 days after the date of this notice), stating that you wish to oppose the Proposed Discontinuance and providing reasons why; and

(b)    attend (or send a representative to attend) the Court hearing to be held in relation to the Proposed Discontinuance on a date and location to be advised (this information will be conveyed to you no later than two weeks prior to the date of the hearing).

17.    You or your representatives should be in a position to explain to the Court at the hearing why you consider that the Proposed Discontinuance should not be approved by the Court.

18.    If you think you might wish to oppose the Proposed Discontinuance, you should obtain independent legal advice immediately.

19.    You can also contact Johnson Winter Slattery for further information about this notice.

20.    The Court cannot answer questions about the process or provide legal advice.

Schedule 1

Notice of Objection

No. QUD716 of 2024

Federal Court of Australia

District Registry: Queensland

Division: General

Peter Glen Inger and others

Applicants

State of Queensland and another

Respondents

The group member identified below gives notice that an objection is made to the proposed discontinuance of the above-named representative proceeding. The group member’s written reasons for the objection are attached to this notice.

Date:

Signed by:

Capacity:

REASONS FOR JUDGMENT

HESPE J:

1    These reasons concern an application to approve a discontinuance of the proceeding under s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (Act).

2    The proceeding is a representative proceeding commenced under Pt IVA of the Act. In broad terms, the applicants seek declarations that certain provisions of the Land Tax Act 2010 (Qld), Duties Act 2001 (Qld) and Taxation Administration Act 2001 (Qld) did not operate insofar as they purported to impose a legal liability or obligation on group members to make payments to the State of Queensland, and claims for restitution from the State of Queensland in respect of certain payments that had been made to the State of Queensland. The basis for the relief sought is essentially that those provisions are inconsistent with laws of the Commonwealth.

THE DISCONTINUANCE APPLICATION

3    On 21 May 2026, the applicants filed an interlocutory application seeking orders pursuant to s 33V(1) of the Act granting the applicants leave to file a notice of discontinuance and, subject to compliance with the notice procedure set out in the orders, that the proceeding be discontinued. The applicants also applied, pursuant to s 33V(1) and s 33ZF of the Act, for an order that any limitation period that applies to any of the group members (including the applicants) shall begin to run again 30 days from the date by which the applicants are required to file a notice of discontinuance.

4    The notice procedure requires the applicants to send an email to the email addresses listed by all persons who had registered their interest as a potential group member in the proceeding on the website created by the solicitors for the applicants for the purpose of the proceeding. The email is to attach a notice that sets out the effects of the proposed discontinuance and advise recipients of the steps that could be taken to oppose the discontinuance of the proceeding, including by completing a “Notice of Objection” to be sent to Johnson Winter Slattery, and subsequently forwarded to the Court.

5    The application was supported by an affidavit of Ms Kathryn Bertram of Johnson Winter Slattery, a solicitor for the applicants, sworn on 21 May 2026. The affidavit explained the considerations that led the applicants to apply to the Court to discontinue the proceeding.

6    The respondents consent to the orders sought by the applicants.

CONSIDERATION

7    For the following reasons, I have granted the interlocutory application and made the orders as substantially sought.

8    The effect of s 33V(1) of the Act is that a representative proceeding may not be settled or discontinued without the approval of the Court. The Court has a protective role with respect to the interests of group members. As a result, even when the discontinuance is not opposed, the Court must be satisfied that approval ought to be given. The Court should be alive to the possibility that the discontinuance may reflect conflicts of interest or conflicts of duty and interest between the applicant and group members, or between group members: Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; (2022) 314 IR 214 at [6] (Murphy J).

9    Where it is likely that many group members are aware of the proceeding, it would be inappropriate to grant leave to discontinue the proceeding without giving notice to group members: Turner at [35] (Murphy J). The principal purpose of a notice under s 33X and s 33Y is to ensure that group members can make informed decisions concerning their rights or interests and can have an opportunity to be heard: Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98; (2017) 252 FCR 1 at [88] (Jagot, Yates and Murphy JJ); Fisher v BT Funds Management Ltd [2024] FCA 1166 at [21] (O’Bryan J).

10    The Court’s task under s 33V in considering whether to approve a discontinuance is different from its task in approving a settlement because the consequences of discontinuance differ from the consequences of a settlement. As Anastassiou J explained in Babscay Ptd Ltd v Pitcher Partners [2020] FCA 1610 at [22]–[24]:

The legal effect of a unilateral discontinuance compared with a settlement agreement may be readily summarised as follows. In the case of a discontinuance, the applicant is free to commence a new proceeding against the same respondents if so advised. As there is no agreement by which the proceeding is compromised, there can be no merger of the applicant’s rights in the proceeding. Similarly, in the absence of any judicial determination, there can be no res judicata or issue estoppel: see, eg, Caason Investments Pty Ltd v Cao (No 3) [2020] FCA 91 at [132] (Murphy J); Thirteenth Corp Pty Ltd v State [2006] FCA 979; 232 ALR 491 at [33] (Jessup J); Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) [40] NSWLR 543, 556-557 (Clarke JA).

In contrast, where a settlement agreement has been reached it will be binding upon all group members who have not opted out of the representative proceeding pursuant to s 33J of the Act. Subject to Court approval under s 33V of the Act, the rights of the group members merge in the settlement agreement, or in the case of an accord executory, merge upon performance of the terms of the agreement. The legal consequences for group members of a settlement agreement are therefore more significant, as the agreement will operate to extinguish their rights in the proceeding and bar them from bringing later proceedings in relation to the same causes of action.

The task of the Court when considering whether to give approval to the settlement is to determine whether the settlement represents “a fair and reasonable compromise of the claims made on behalf of the Group Members”: Lopez v Star World Enterprises [1999] FCA 104 at [15] (Finkelstein J). Plainly, that is not apt to describe the function of the Court in the case of a unilateral discontinuance of a representative proceeding.

11    While the test for settlement approval is now well-established, there is less certainty concerning the test to be applied when approval is sought for discontinuance. As O’Bryan J explained in Fisher v BT Funds Management Ltd (No 2) [2024] FCA 1340, two distinct approaches have emerged:

(1)    Some authorities have adopted the test as being whether the proposed discontinuance would be fair and reasonable not only in the interests of the immediate parties but of the group members as a whole: Mercedes Holdings Pty Ltd v Waters (No 1) [2010] FCA 124; (2010) 77 ACSR 265 at [9]–[10] (Perram J); Hodge v Waters (No 4) [2014] FCA 472 at [15] (Gleeson J); Adams v Navra Group Pty Ltd [2019] FCA 1157 at [19] (Murphy J); Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215 at [69]–[70] (Murphy J).

(2)    Other authorities have adopted the test as being whether the discontinuance would be unfair or unreasonable or adverse to the interests of group members: Laine v Thiess Pty Ltd [2016] VSC 689 at [34] (Dixon J); Babscay at [28] (Anastassiou J); Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87 at [49] (Wigney J); Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275 at [33] (Derrington J); and Alford v AMP Superannuation Limited [2024] FCA 332 at [13] (Anderson J). Others have expressed the view that this test is to be preferred where the practical effect of the proposed discontinuance will be to return group members to the position they were in before the commencement of the proceeding: Turner at [10] (Murphy J); Lloyd v Belconnen Lakeview Pty Ltd (No 3) [2022] FCA 761 at [6] (Lee J); LPSP v Commonwealth of Australia [2025] FCA 1655 at [7] (Murphy J).

12    Because the terms of the sought orders provide for any limitation period that applies to any of the group members (including the applicants) to begin to run again only from 30 days from the date by which the applicants are required to file a notice of discontinuance and because a discontinuance will not involve any judicial determination in relation to the merits of their claims, I am satisfied that the practical effect of the proposed discontinuance will be to return group members to the position they were in before the commencement of the proceeding. In these circumstances, the weight of the authorities supports the view that the task of the Court is to assess whether the discontinuance would be unfair or unreasonable or adverse to the interests of group members: Fisher (No 2) at [24] (O’Bryan J).

13    I consider that the proposed orders facilitating discontinuance would not be unfair or unreasonable or adverse to the interests of group members because:

(1)    Since the proceedings were commenced, the High Court has handed down the decision in G Global 120E T2 Pty Ltd v Commissioner of State Revenue [2025] HCA 39; (2025) 99 ALJR 1465. The effect of that decision was to significantly reduce the scope of the claims that could be maintained in the present proceeding. Because the claims made by the applicants could not be maintained, it would be necessary to find new lead applicants.

(2)    The legal representatives for the applicants have formed the view that those claims that could be maintained following the High Court decision would be subject to s 10A of the Limitations of Actions Act 1974 (Qld), which provides that an action to recover an amount paid as tax that is recoverable because of the invalidity of an Act or a provision of an Act must be started within 1 year after the day of payment.

(3)    The legal representatives for the applicants are of the view that those claims that could be maintained following the High Court decision would also be subject to s 36(2) and s 188 of the Administration Act which effectively require that actions for recovery of an amount purportedly paid under a tax law to be commenced prior to 23 June 2023.

(4)    The respondents have agreed that there be no order as to costs if the proceedings are discontinued.

(5)    The litigation funder intends to cease funding the proceeding if the proceeding is not discontinued because it is no longer commercially viable for the litigation funder to continue that funding. The evidence indicates that there is no reasonable prospect that another commercial third-party funder would agree to fund the proceeding.

(6)    Group members will be given notice of the proposed discontinuance and of their right to object to the discontinuance or commence a proceeding in their own name against the respondents. Group members will have the opportunity to be heard prior to the order for discontinuance taking effect.

14    The evidence before the Court is that the applicants and the litigation funder now assess the prospects of success in the proceeding as insufficient to justify its continuation. In these circumstances, I am satisfied that it is appropriate to make the orders sought pursuant to s 33V of the Act.

15    Section 33ZE(1) of the Act provides that, upon the commencement of a representative proceeding, the running of any limitation period applicable to the claim of a group member is suspended. Subsection (2) provides that the limitation period will not begin to run again until either the group member opts out of the proceeding, or the proceeding and any appeals arising out of the proceeding “are determined without finally disposing of the group member’s claim”.

16    As O’Bryan J acknowledged in Fisher (No 2) at [33], there is some uncertainty regarding whether an order to discontinue a proceeding constitutes a determination for the purposes of s 33ZE(2), such that time commences to run again on the discontinuance being approved: Gill v Ethicon Sarl (No 4) [2019] FCA 1814 at [22] (Lee J), Babscay at [33]–[37] (Anastassiou J); Maximus at [53] (Wigney J); Oculus at [56] (Derrington J); Turner at [20] (Murphy J); Rota v Fire Rescue Victoria [2024] FCA 424 at [21] (Anderson J); Fenton v Monsanto Australia Pty Ltd [2024] FCA 1525 at [24]–[28] (Lee J); LPSP at [9] (Murphy J).

(1)    One view is that a discontinuance does not amount to a judicial determination of the proceeding. Consequently, upon approval of the discontinuance of a representative proceeding, the limitation periods applicable to group members’ claims would remain suspended, forever exposing respondents to the risk of claims by group members. As has been recognised, it is unlikely that the legislature intended such a result: Fenton at [27] (Lee J); LPSP at [10] (Murphy J). On this view, it may be appropriate to make orders pursuant to s 33V(1) and s 33ZF that the limitation period starts to run again at some defined point.

(2)    An alternate view is that a discontinuance of proceedings constitutes a determination, because a discontinuance is a legal process by which the proceeding comes to an end. A discontinuance order would therefore result in any applicable limitation period beginning to run again. O’Bryan J in Fisher (No 2) at [34]–[35] expressed a preference for this view.

17    Because of the conflicting authorities, I am satisfied that it is appropriate to make an order pursuant to s 33V, and / or the general power of the Court to make orders under s 33ZF, largely in the form sought by the parties. This will provide certainty for the respondents that the limitation period will begin to run again. 30 days is appropriate given that the decision of the High Court was handed down on 15 October 2025 and as such, interested parties have had time to consider and obtain advice on the implications of that decision.

DISPOSITION

18    Orders substantially as sought will be made.

Associate:

Dated:    22 June 2026