FEDERAL COURT OF AUSTRALIA

cross vesting -proceeding commenced in Federal Court - whether in interests of justice to transfer proceeding to Supreme Court of the Northern Territory

Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth), s 5(4)(b)(iii)

yvonne margarula v ERIC POOLE, MINISTER FOR RESOURCE DEVELOPMENT FOR THE NORTHERN TERRITORY and ENERGY RESOURCES OF AUSTRALIA LTD

VG 214 of 1998

MARSHALL J

MELBOURNE

28 MAY 1998

THE COURT ORDERS THAT:

1.         The proceeding be transferred to the Supreme Court of the Northern Territory (“the Supreme Court”).

2.         The interim injunction granted on 22 May 1998 be continued beyond 5:00 pm today      until discharged or varied by any order of the Supreme Court.

3.         Costs reserved.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth), I am satisfied that the interests of justice make it more appropriate that the proceeding be determined by the Supreme Court of the Northern Territory (“the Supreme Court”).  I am therefore bound to order that the proceeding be transferred to the Supreme Court.

Whilst I have been assisted by the helpful and detailed submissions of counsel on the question of transfer, the overriding consideration, in my view, is the inability of the Federal Court at this point in time to provide a judge to deal with this matter within the next three weeks, whether in Melbourne, Darwin or anywhere else in the country.

The injunction which I granted on 22 May 1998 was obtained on an ex parte basis.  In my opinion, it is appropriate that the issue of whether the interim injunction should be continued pending the hearing and determination of the application for interlocutory relief and/or the substantive hearing of the matter should be resolved within a relatively short period of time.  I have evidence before me that the Supreme Court has a judge available to deal with the matter next week.  In those circumstances, it is in the interests of justice that the matter be transferred to the Supreme Court as soon as possible.

Given the relatively short time before the Supreme Court will be seized of the proceeding, in my view, it is more appropriate that that court should consider the question of whether the interim relief which I granted and have extended to apply to 5:00 pm today should be continued.  I also believe it is preferable that the Supreme Court make the directions which it believes appropriate for the further conduct of the matter, including a timetable for the filing of further affidavit material.

In the meantime, it is my view that the interim injunction granted on 22 May 1998 should be extended, pending any order of the Supreme Court.  In the context of the totality of the material that will be filed in relation to the application for interlocutory relief, I believe that the Supreme Court will be better placed to determine whether the interim injunction should continue and if so, on what basis.

For similar reasons, I am also of the view that the Supreme Court will be better placed to determine where the cost burden should fall in relation to the issues ventilated before me yesterday, especially having regard to my rather narrow, albeit practical basis for ordering that a transfer of the proceeding take place.

The orders that I make are as follows: 

1.         The proceeding be transferred to the Supreme Court of the Northern Territory, the        Supreme Court.

2.         The interim injunction granted on 22 May 1998 be continued beyond 5:00 pm today      until discharged or varied by any order of the Supreme Court.

3.         Costs reserved.

Associate:

Dated:              28 May 1998