Bidjara Aboriginal Housing and Land Company Ltd v Aboriginal and Torres Strait Islander Commission

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
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 respondent.

may before that time allow, the appellant provide security by
payment into Court or otherwise to the satisfaction of the

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
12 August 2005 should be dismissed.

KEANE JA: I agree.

CULLINANE J: I agree.

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CaseChat Overview and Summary

The case of Bidjara Aboriginal Housing and Land Company Ltd v Aboriginal and Torres Strait Islander Commission involved the appellant, the Bidjara Aboriginal Housing and Land Company Ltd, appealing against a decision of the Queensland Supreme Court. The appellant sought to extend the time for filing an appeal against an order that required it to pay $10,000 in security costs for the first respondent by a certain date. The Court of Appeal had initially ordered that the appeal would be dismissed if the security was not paid by a specified date, which was later extended to allow the appellant to pay the funds by a different date.

The central legal issue before the court was whether the appellant's application for an extension of time to pay the security costs, made on the last day of the originally extended period, was sufficiently prompt and justified to warrant a variation of the earlier orders. The appellant argued that it had a reasonable excuse for the delay and would be able to provide the funds shortly after the extended deadline. The first respondent opposed the application, asserting that the appellant had not acted with due diligence and that the lateness of the application should preclude any variation of the orders.

In assessing the matter, the court noted that while there was a valid reason presented for the delay, the application was made on the very last day of the extended period and without any prior indication that the funds would be available. The court emphasised the importance of adhering to court-imposed deadlines and the principle that parties must act promptly and diligently to avoid the dismissal of their appeals. Given the lateness of the application and the lack of any prior assurance that the funds would be available, the court found that the application for a further extension of time was not sufficiently justified to warrant a variation of the earlier orders. Consequently, the application for variation was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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
SOLICITORS:	Clewett Corser & Drummond for the appellant/applicant No appearance on behalf of the respondent