FEDERAL COURT OF AUSTRALIA Campbell v The Northern Territory of Australia [2017] FCA 885 File number(s): ACD 41 of 2017 Judge(s): JAGOT J Date of judgment: 2 August 2017 Catchwords: PRACTICE AND PROCEDURE – Cross-vesting legislation –application to transfer proceeding under the Australian Human Rights Commission Act 1986 (Cth) to Supreme Court of the Northern Territory – whether proceeding is "related to" proceedings pending in the Supreme Court of the Northern Territory – whether transfer of proceeding is in the interests of justice – application for transfer of proceeding to Federal Court Registry of the Northern Territory at Darwin. Legislation: Australian Human Rights Commission Act 1986 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) s 48 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 46PO Racial Discrimination Act 1975 (Cth) Youth Justice Act (NT) Youth Justice Regulations (NT) Cases cited: LO v Northern Territory of Australia [2017] NTSC 22 Date of hearing: 2 August 2017 Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr PA Tierney Solicitor for the Applicant: Ken Cush & Associates Counsel for the Respondent: Mr DA McLure SC with Mr T Moses Solicitor for the Respondent: Solicitor for the Northern Territory ORDERS ACD 41 of 2017 BETWEEN: MARLEY CAMPBELL Applicant AND: THE NORTHERN TERRITORY OF AUSTRALIA Respondent JUDGE: JAGOT J DATE OF ORDER: 2 AUGUST 2017 THE COURT ORDERS THAT: 1. Pursuant to s 48(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding be transferred to the Federal Court Registry of the Northern Territory at Darwin. 2. The respondent pay the applicant's costs of the interlocutory application dated 5 July 2017 as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 Before me today is an interlocutory application filed on behalf of the respondent, the Northern Territory of Australia. The real issue arising under the interlocutory application is whether this proceeding must be transferred to the Supreme Court of the Northern Territory pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act). In effect, that provision states that if it appears to this Court that a relevant proceeding in this Court arises out of or is related to another proceeding pending in the Supreme Court of a State or Territory, and it is more appropriate that the relevant proceeding be determined by that Supreme Court having regard to various factors outlined in s 5(4)(b)(ii) (A) to (D), including the interests of justice, then this Court shall transfer the relevant proceeding to the Supreme Court. 2 In support of the Northern Territory's application for transfer, it is apparent that this proceeding was commenced by an originating application under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). The accompanying statement of claim discloses that the claims are for damages, compensation, interest and costs, as well as an apology as provided for in the relevant provisions of the AHRC Act. The claims are founded upon the applicant being an Aboriginal man who was detained by the Northern Territory at various youth detention centres pursuant to the Northern Territory's powers under the Youth Justice Act (NT) (the Youth Justice Act) and the Youth Justice Regulations (NT) (the Youth Justice Regulations). 3 According to the statement of claim, by reason of events which occurred during the applicant's detention, it is alleged that the Northern Territory is vicariously liable for various acts and omissions constituting the torts of assault and trespass to the person, false imprisonment, negligence, and racial discrimination in contravention of the Racial Discrimination Act 1975 (Cth) (the RDA), which was the underpinning for the complaint to the Australian Human Rights Commission, founding the filing of the originating application. 4 The Northern Territory contends that s 5(4) of the Cross-Vesting Act is enlivened in this case because of circumstances including a first instance decision by the Supreme Court of the Northern Territory in LO v Northern Territory of Australia [2017] NTSC 22, which is currently subject to an appeal listed for hearing on 24 and 25 August 2017. Those proceedings relate to claims for intentional torts against persons who were also detained at the Don Dale Youth Detention Centre in the Northern Territory, and involved consideration of the application of the provisions of the Youth Justice Act and the Youth Justice Regulations. Further, there are other pending claims also commenced in the Supreme Court of the Northern Territory which raise similar issues relating to the same kinds of alleged tortious conduct which have been listed for hearing between 27 November 2017 and 15 December 2017. It is said that these matters and this proceeding all give rise to questions of the proper construction of the Youth Justice Act and the Youth Justice Regulations and, in addition, the appropriate measure of damages under the laws of the Northern Territory. 5 Accordingly, the Northern Territory submitted that the conditions for requiring an exercise of power under s 5(4) of the Cross-Vesting Act are satisfied, in that there are related proceedings, it is appropriate that the Supreme Court of the Northern Territory which is already seized of jurisdiction in the other matters should also be seized of jurisdiction in this matter, and that the interests of justice require this to occur. This submission involved the following propositions: (1) the Youth Justice Act and the Youth Justice Regulations are laws of the Northern Territory and are relevant to all matters, so that the Supreme Court of the Northern Territory is the most appropriate forum to determine the proper application or construction of those laws; (2) the judicial determination in all matters concerns the conduct of officers and employees of the Northern Territory Executive Government, which occurred in Northern Territory correctional institutions; and (3) it follows that the Supreme Court of the Northern Territory, which routinely sits in Alice Springs and Darwin, is the natural forum for this matter. 6 These submissions raise an aspect of the matter which is worth briefly noting; namely, that the proceeding was commenced in the ACT Registry of this Court on 26 May 2017. The reasons for doing so are adequately explained in the affidavit of Alyce Kathryn Johnson filed on behalf of the applicant on 19 July 2017 and need not be repeated here. Nevertheless, the applicant has no objection to the transfer of these proceedings to the Darwin Registry of this Court. At the outset of this matter, I indicated to the parties this would occur by an order made today. As noted, the real issue in dispute is the transfer of the matter to the Supreme Court of the Northern Territory. 7 While the applicant has submitted that there are not proceedings pending in the Supreme Court of the Northern Territory which are "related to" this proceeding, I am prepared to assume this for the purposes of resolving the interlocutory application. It is true that the basis of the relationship is confined to the application of legislation of the Northern Territory and the location at which and context in which the alleged tortious and discriminatory conduct occurred. But I will proceed on the basis that there is a relevant relationship. 8 This leaves the question whether it is more appropriate that the relevant proceeding be determined by the Supreme Court than this Court and whether it is in the interests of justice that the relevant proceeding be determined by the Supreme Court, having regard to the factors specified in section 5(4)(b)(ii)(A) to (D) of the Cross-Vesting Act. Having regard to those factors, it is apparent that these proceedings could not have been commenced at first instance in the Supreme Court of the Northern Territory, because they constitute an application under the AHRC Act. Section 46PO of the AHRC Act relevantly vests jurisdiction in this Court to determine such applications. On the other hand, leaving aside the rather complex issues which would be involved in the question whether the laws of the Northern Territory always involve matters of federal jurisdiction, it is also apparent that the primary legislation which will arise for consideration in this proceeding is legislation of the Northern Territory. 9 I am not persuaded that it is more appropriate that this proceeding be determined by the Supreme Court of the Northern Territory or that it is in the interests of justice that it be so determined, in short because the proceeding has at its heart a racial discrimination claim under the RDA, which is Commonwealth legislation under which specific jurisdiction is vested in this Court. 10 Further, while I accept that there is common ground between this proceeding and the other proceedings pending in the Supreme Court of the Northern Territory relating to the application of Northern Territory legislation, the way in which that legislation will impact upon this proceeding very much involves questions of fact particular to this applicant. In circumstances where the jurisdiction of this Court, by reason of the provisions of s 46PO of the AHRC Act, has been specifically invoked by a claim under the RDA, I cannot be satisfied that it is more appropriate or in the interests of justice that this proceeding be determined by the Supreme Court of the Northern Territory. For these reasons, the application by the Northern Territory pursuant to s 5(4) of the Cross-Vesting Act fails. 11 Accordingly, the order that should be made in response to the interlocutory application is for transfer of the proceeding to the Federal Court Registry of the Northern Territory at Darwin and that the respondent pay the applicant's costs of the interlocutory application dated 5 July 2017 as agreed or taxed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 4 August 2017