Bidjara Aboriginal Housing and Land Company Ltd v Aboriginal and Torres Strait Islander Commission & Ors [2005] QCA 338

SUPREME COURT OF QUEENSLAND CITATION: Bidjara Aboriginal Housing & Land Company Ltd v Commonwealth of Australia & Ors [2005] QCA 338 PARTIES: BIDJARA ABORIGINAL HOUSING & LAND COMPANY LIMITED ACN 010 017 955 (plaintiff/appellant/applicant) v COMMONWEALTH OF AUSTRALIA (first defendant/first respondent/respondent) ROSS ANDREW DUUS AND GARRY JOHN HAMILTON (second defendants/second respondents) FILE NO/S: Appeal No 4658 of 2005 SC No 9905 of 2003 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 12 September 2005 DELIVERED AT: Brisbane HEARING DATE: 12 September 2005 JUDGES: Jerrard and Keane JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for variation of orders made 12 August 2005 dismissed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – Court of Appeal made order on 12 August 2005 that the appeal would be dismissed unless the appellant paid $10,000 as security costs for the first respondent by 12 September 2005 – affidavit presented to the Court on 12 September 2005 deposing that the appellant could provide the funds by 19 September 2005 – whether on such a late application the order should be varied COUNSEL: L A Stephens for the appellant/applicant No appearance on behalf of the respondent -- 1 of 3 -- 2 SOLICITORS: Clewett Corser & Drummond for the appellant/applicant No appearance on behalf of the respondent JERRARD JA: In this application the applicant asked for an extension of time in which to provide the amount of $10,000 ordered to be paid as security for costs. The order of the Court made on 12 August 2005 was relevantly in these terms: that the appeal stands dismissed with costs unless on or before 12 September 2005, or such further time as the Court may before that time allow, the appellant provide security by payment into Court or otherwise to the satisfaction of the Registrar in the amount of $10,000 for the costs of the first respondent. Today, 12 September, the appellant has asked for, in effect, that order to be vacated or amended and his solicitor has deposed to having spoken today with a party assisting the directors of the appellant corporation in their endeavours to raise the $10,000. That party has advised the solicitor for the appellant that that party has an amount of $10,000 available and expects the funds by 19 September 2005. That may all be accurate but unfortunately I construe the terms of the order made by this Court as having been drawn with some deliberation and intent and as requiring that any application such as this one, which is a last minute request for an extension of time, be made prior to today's date and at the latest by Friday of last week. There was no such application and in the circumstances and in my opinion the application for a variation or alteration of the order of -- 2 of 3 -- 3 12 August 2005 should be dismissed. KEANE JA: I agree. CULLINANE J: I agree. ----- -- 3 of 3 --