Federal Court of Australia

Zentree Investments Limited v North Limited (Expedition) [2026] FCA 1234

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s application for expedition be granted.

2.    The Full Court appeal be listed for hearing for two days in the November 2026 appeal sitting period.

3.    The appellant pay the respondent’s costs of and incidental to the respondent’s interlocutory application for expedition, as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The respondent to this appeal, North Limited, applies for expedition of the hearing of this appeal, by way of an interlocutory application dated and filed 3 August 2026 (expedition application), accompanied by written submissions and a supporting affidavit. North seeks to have the hearing of the substantive appeal listed for two days in the period between 2 and 27 November 2026, during the normal final appeal period for the year. The appellant, Zentree Investments Limited, opposes expedition, relying upon written submissions dated 19 August 2026, filed 20 August 2026, and a supporting affidavit. The parties did not oppose the Court deciding the expedition application on the papers.

2    By way of background, on 5 June 2026, the primary judge made orders approving North’s acquisition of the remaining shares in Energy Resources of Australia Limited (ERA) under s 664F of the Corporations Act 2001 (Cth): North Limited v Zentree Investments Ltd, in the matter of Energy Resources of Australia Ltd [2026] FCA 695. On 3 July 2026, Zentree filed a notice of appeal. On 24 July 2026, North filed a notice of contention.

3    The principles attaching to expedition generally were conveniently and recently summarised by Vandongen J in CSRP Pty Ltd v Australian Workers’ Union [2026] FCA 644 (CSRP v AWU):

[27]    The relevant principles to be applied in the context of an application for an expedited hearing are well established. Essentially, the Court has a broad discretion to order expedition, which discretion is consistent with the Court's power under s 37P(2) of the Federal Court of Australia Act 1976 (Cth) to give directions about the practice and procedure to be followed in relation to proceedings, or any part of proceedings, a power that is to be exercised or carried out in the way that best promotes the overarching purpose: ss 37M(1) and 37M(3).

[28]    The Court will not make an order for an expedited hearing unless it is satisfied that it is in the interests of justice: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [18]; Frigger v Trenfield (No 6) [2022] FCA 1233 at [31]. Factors that have been found in other cases to have been relevant to the exercise of the discretion to make an order for an expedited hearing include:

(1)    Whether a party would suffer some significant practical disadvantage, or irreparable loss, if the proceeding were not expedited (eg, loss of livelihood, business or home): Hird at [19]; Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373 (Zhong Ao Zhi Hong Investment Holding) at [13].

(2)    Whether witness evidence is needed, and if so the availability of witnesses, or whether the questions in the proceeding can be determined on the basis of documents: Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1 at [42]; Meadow Springs Fairway Resort Ltd (In Liq) (ACN 084 358 592) v Balanced Securities Ltd (ACN 083 514 685) [2007] FCA 1443 at [52]; Zhong Ao Zhi Hong Investment Holding at [13].

(3)    Where there will be occasioned a serious detriment to good public administration or to the interests of others not party to the appeal: Hird at [19].

(4)    The parties’ own conduct, including the extent to which it has caused or contributed to delay and whether the application for expedition is opposed: Hird at [20]; Frigger v Trenfield (No 6) at [32].

(5)    The rights and interests of all litigants current and prospective, in the sense that granting of expedition in one proceeding deprives others and gives priority to that party over the many other parties who have commenced actions and complied with the timetables dictated by the Court: Hird at [21]; Sydney Trains v Australian Rail, Tram and Bus Industry Union (No 2) [2022] FCA 1264 at [13].

4    The second factor above, namely considerations of evidence, ordinarily does not have any part to play in relation to the expedition of an appeal hearing, and does not appear to feature in this appeal. Of course, the balance of the factors listed above are neither mandatory nor exhaustive. Rather, they provide a sense of the sorts of considerations that may have a bearing on the exercise of the broad discretion to expedite the hearing of any proceeding. The focus must be on the interests of justice, statutorily supplemented by the overarching purpose of civil litigation in this Court set out in s 37M of the Federal Court of Australia Act 1976 (Cth).

5    North relies on three reasons for expedition based on facts established by the affidavit of Robert O’Toole affirmed 3 August 2026:

(a)    Expedition is consistent with the statutory regime for compulsory acquisition. Quotation of ERA’s securities has been suspended since the close of trading on 15 June 2026 and the ASX has confirmed that ERA should remain suspended pending determination of Zentree’s appeal. North has undertaken not to complete its compulsory acquisition of shares in ERA until determination of the appeal. As a result, shareholders of ERA are locked into their investment until the appeal has been determined, because they will not be able to trade their shares in ERA and will not receive any consideration from North unless and until the primary judge’s order approving the compulsory acquisition is upheld. This delay undercuts minority shareholder rights to prompt consideration for the acquisition of the remaining shares in ERA, manifested by the 14-day period for that to occur in s 666A of the Corporations Act.

(b)    ERA has substantial rehabilitation obligations with respect to the Ranger Project Area in the Northern Territory, having to date primarily funded those obligations through rights issues undertaken between 2019 and 2024. ERA’s most recent entitlement offer of 29 August 2024, securing some $766 million in additional funding, is only expected to support those rehabilitation activities until the end of 2027. As a result, ERA is likely to require additional funding from July to September 2027. Expedition of the appeal advances that objective by materially increasing the prospects of the appeal not just being heard, but also being determined, well before that time.

(c)    Other litigation before this Court remains in abeyance pending the outcome of the appeal, including Energy Resources of Australia v Minister for Resources and Minister for Northern Australia (Commonwealth) and Ors (NSD 1056/2024) in which ERA seeks judicial review of the decision to refuse to renew its mining lease for the Jabiluka uranium deposit. The final hearing was vacated having regard to North’s proposed compulsory acquisition. It is unlikely that that proceeding will resume until the present appeal has been resolved.

6    Each of the above three reasons seem to me to be weighty considerations on their face which favour ordering expedition, subject to what Zentree contends to the contrary. I turn now to consider Zentree’s submissions.

7    Zentree submits that the expedition application should be refused on the following grounds:

(a)    North has not made out a case that warrants the exercise of the Court’s discretion for expediting the hearing of the appeal in the interests of justice, a point developed by reference to the three reasons relied upon by North; and

(b)    the primary judge has not made orders or delivered judgment on costs, which may be the subject matter of an appeal by either party, and all aspects of the appeal from her Honour should be heard at the same time.

8    The second reason has fallen away because on 24 August 2026, the costs judgment was delivered and costs orders made: North Limited v Zentree Limited, in the matter of Energy Resources of Australia Ltd (Costs) [2026] FCA 1202. In light of this decision being handed down, the parties now have enough time for any appeal in relation to that decision to be brought, and for it to be progressed efficiently enough to be heard with the existing appeal.

9    With reference to the factors identified in Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 (at [18]), summarised in the passages from CSRP v AWU reproduced above at [3], Zentree contends that in the present case, those factors have not been established. Specifically, Zentree asserts that North has failed to address the following factors:

(a)    whether the appellant would suffer some significant practical disadvantage if the hearing did not take place until after a particular date;

(b)    whether a party might lose its livelihood, business or home, or suffer irrefutable loss or extraordinary hardship;

(c)    whether the appeal would become futile; and

(d)    whether the parties proceeded up to the date of the application for expedition with due speed.

10    Zentree misdescribes the factors listed in Hird and overstates them as “relevant determinative factors.” This characterisation is mistaken. They are not mandatory relevant considerations or compulsory criteria. To adopt Vandongen J’s language in CSRP v AWU, those factors have been found to be relevant to the Court’s consideration as to whether the discretion should be exercised. A factor being relevant to an exercise of discretion does not necessarily make it determinative, or even important, for a decision on expedition in any particular case, let alone that it must be considered in every case. The presence or absence of certain of those factors may or may not tilt the exercise of the discretion one way or the other. Zentree therefore spends too much time focussing on what is absent from North’s case for expedition, rather than what is present.

11    Given that Zentree did not say anything more about any of those factors, I found that approach decidedly unhelpful and accordingly place little weight on the absence of any of them. The application therefore turns on the three reasons that North has identified, and what Zentree has to say about them.

12    In summary, Zentree responds to the three reasons advanced by North and extracted above at [5], as follows:

(a)    As to the impact of the trading halt on ERA securities imposed by the ASX, Zentree asserts that North fails to establish how the expeditious hearing of the appeal is in the interests of minority shareholders when there are only two outcomes, namely either confirmation of the declaration that the value offered in the North’s compulsory acquisition for acquiring ERA’s shares being $0.002 is fair value of ERA’s shares; or a contrary finding (the reference to the Full Court making a contrary declaration is incoherent as that is highly unlikely). Zentree’s argument is that “historical share trading data preceding the trading halt suggests that it is not necessarily in the interests of minority shareholders of ERA to expedite the appeal, and accordingly, does not provide a proper basis for the urgent hearing of the appeal” and points to the share price recently having been lower than the compulsory acquisition price. In my view, this argument is a possible reason why the appeal might be upheld, but not a compelling reason against expedition. It does not meet the more compelling argument advanced by North for expedition of general consistency with the legislative scheme, notwithstanding the primary judge staying her own orders, superseding the effect of s 666A.

(b)    As to rehabilitation, Zentree’s argument in opposition amounts to no more than a later appeal still being early enough, including having regard to ERA’s history of entitlement offers. I do not find that argument even attractive, let alone compelling. It does not grapple with the desirability of maximising the chance of an appeal decision being delivered before it could legitimately become a problem.

(c)    Zentree also asserts that “the appeal being expedited for this reason would disadvantage Zentree, in that, it will not have the time that it would otherwise have in an ordinary course to prepare its appeal and appropriately address the issues affecting its rights and the rights of over 9000 minority shareholders”. That is a shrill argument. Even if the appeal is expedited, it will not be heard until the end of the November 2026 appeal period, which is three months away. That should be ample time for preparation. Beyond merely asserting it would be disadvantaged, Zentree has not explained why the time would be insufficient, or have the effect of prejudicing Zentree in relation to the appeal that it has chosen to bring, to justify the refusal of the expedition on this basis, such as pointing out the existence of some particular extenuating circumstance which brings about that disadvantage.

(d)    As to the impact on other litigants, Zentree says that North has failed to identify, or evidence, the prejudice caused or likely to be caused by the continued abeyance of NSD 1056/2024 if the expedition is refused. I did not find that approach helpful. It is enough that the delay in this proceeding is causing undisputed delay in at least one other proceeding.

13    None of Zentree’s arguments against the three reasons for expedition advanced by North are as compelling as those reasons themselves. I am comfortably satisfied that it is in the interests of justice that expedition should be ordered.

Associate:

Dated:    27 August 2026