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

[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
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.

-----