Jalpalm Pty Ltd v Hamilton Island Enterprises Pty Ltd

[1995] FCA 704

CATCHWORDS

PRACTICE & PROCEDURE - security for costs - matter struck out for failure to provide security for costs - failure to provide any information as to when payment could be expected

Federal Court of Australia Act 1976 s56(9)
Federal Court Rules O 28 rr 4, 5

Microbio Resources Inc v Betatene Limited (unreported decision of Full Court of Federal Court of Australia 8 October 1993)

Jalpalm Pty Ltd v. Hamilton Island Enterprises Pty Ltd and John Palmer
No QG 198 of 1994

Kiefel J  Brisbane 1 September 1995

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
  No. QG 198 of 1994
BETWEEN:

JALPALM PTY. LTD.

Applicant

AND:

HAMILTON ISLAND ENTERPRISES PTY. LTD.

First Respondent

AND:

JOHN PALMER

Second Respondent

JUDGE MAKING ORDER:        Kiefel J.

DATE OF ORDER:  30 August 1995

WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. Application No. QG198 of 1994 be dismissed with costs including reserved costs if any.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
  No. QG 198 of 1994
BETWEEN:

JALPALM PTY. LTD.

Applicant

AND:

HAMILTON ISLAND ENTERPRISES PTY. LTD.

First Respondent

AND:

JOHN PALMER

Second Respondent

CORAM:Kiefel J.

DATE:30 August 1995

PLACE:Brisbane

REASONS FOR JUDGMENT

On 30 August 1995 I ordered that the proceeding be dismissed with costs.  These are a short statement of my Reasons for doing so.

On 29 March 1995 I ordered that the applicant company provide security in the sum of $25,000 within twenty one days.  An application for leave to appeal from that order was dismissed on 9 June 1995.  After demand by the respondents' solicitors that the security be provided, the solicitors for the applicant advised on 16 June 1995 that it would be available shortly.  How and when that was to be achieved was not adverted to.   The respondents' solicitors wrote again on 3 July 1995 and no response was received to the demand in it.  The security has still not been provided and the town agents for the
solicitors for the applicant, who sought leave to withdraw, were unable to advise me of the applicant's intentions other than that their solicitors did not have instructions to appear and make submissions.

In these circumstances there is power to dismiss the proceedings:  Federal Court of Australia Act 1976, s.56(4), Federal Court Rules O.28 rr.4,5 and see Microbio Resources Inc. v. Betatene Limited (unreported decision of the Full Court of the Federal Court of Australia, 8.10.93).

Given the non-compliance with the order, the time which has passed since it was made and the lack of any explanation or request for further extension I can only conclude that there is no interest in the continuation of the proceedings either by the applicant or the creditors who might benefit from it.  It is unreasonable to leave the proceeding, which is presently stayed, as a contingency with which the respondents may have to deal with at some future time.

I certify that this and the preceding page is a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:31 August 1995

Counsel for the applicant:  Mr Hawley

Solicitors for the applicant:  Watkins Stokes Templeton

Counsel for the respondents:  Mr Derrington

Solicitors for the respondents:  Bain Gasteen

Date of Hearing:  30 August 1995

Place of Hearing:  Brisbane

Date of Judgment:  30 August 1995