Nyoni v Pharmacy Board of Australia [2018] FCA 1707

Nyoni v Pharmacy Board of Australia [2018] FCA 1707

The applicant failed to identify any material error of law or fact, disregard of a material consideration, taking into account of an irrelevant consideration, or that the orders were plainly unreasonable in the exercise of the discretion to order security for costs. Therefore, there was no basis to vary or set aside the interlocutory orders of White J and the application must be dismissed.

Parties
Applicant: Emson Nyoni; First Respondent: Pharmacy Board of Australia; Second Respondent: Dr Andrew Robertson in his capacity as the Delegate to the Chief Executive Officer of the Department of Health; Third Respondent: Australian Health Practitioner Regulation Agency
Jurisdiction
Australia
Judgment Date
08 November 2018
Procedural Posture
Application to Vary or Set Aside Interlocutory Orders / Application for Leave to Appeal / Post Interlocutory Order – Application Determined on the Papers
Outcome
Application dismissed with costs
Legal Topics
Security for Costs, Powers of a Single Judge on Appeal, Appellate Procedure, Finality of Litigation, Setting Aside Interlocutory Orders
Practice and Procedure Security for Costs Powers of a Single Judge on Appeal Appellate Procedure Finality of Litigation Setting Aside Interlocutory Orders

Case Brief

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Parties

Emson Nyoni

Applicant

Pharmacy Board of Australia

First Respondent

Dr Andrew Robertson in his capacity as the Delegate to the Chief Executive Officer of the Department of Health

Second Respondent

Australian Health Practitioner Regulation Agency

Third Respondent

Procedural Posture

Application to Vary or Set Aside Interlocutory Orders / Application for Leave to Appeal / Post Interlocutory Order – Application Determined on the Papers

Legal Issues

  1. 1 Whether the applicant's interlocutory application to vary or set aside a prior order for security for costs should be granted
  2. 2 Whether there is jurisdiction for a Full Court to hear an appeal against an interlocutory judgment made by a single judge exercising appellate jurisdiction
  3. 3 The principles applicable to varying or setting aside interlocutory orders under s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth)

Ratio Decidendi

The applicant failed to identify any material error of law or fact, disregard of a material consideration, taking into account of an irrelevant consideration, or that the orders were plainly unreasonable in the exercise of the discretion to order security for costs. Therefore, there was no basis to vary or set aside the interlocutory orders of White J and the application must be dismissed.

Court Disposition

Application dismissed with costs

Orders

  • The applicant's application for leave to appeal, filed 11 September 2018, be treated as an application to vary or set aside orders pursuant to s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth).
  • The applicant's application be dismissed with costs.