Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225

Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225

The appellant had been properly served with the interlocutory application and had adequate notice of the hearing but did not appear or provide a proper explanation. He had failed to provide the $20,000 security for costs ordered on 28 August 2018, had not obtained the setting aside of that order, had not sought an extension of time, and had provided no explanation for non-compliance. In those circumstances, the Court exercised its power under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal.

Jurisdiction
Australia
Judgment Date
18 February 2019
Procedural Posture
Appeal / Interlocutory Application by the Respondents to Dismiss the Appeal for Non Compliance With a Security for Costs Order
Outcome
The appeal was dismissed.
Legal Topics
['security for Costs' 'dismissal of Appeal' 'non Compliance With Court Order' 'hearing in Absence of Party' 'single Judge Appellate Jurisdiction']
['practice and Procedure' 'appellate Procedure' 'costs'] ['security for Costs' 'dismissal of Appeal' 'non Compliance With Court Order' 'hearing in Absence of Party' 'single Judge Appellate Jurisdiction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Interlocutory Application by the Respondents to Dismiss the Appeal for Non Compliance With a Security for Costs Order

Legal Issues

  1. 1 ["Whether the interlocutory application could be heard and determined in the appellant's absence after service and notice of the hearing." 'Whether the Court had power under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth), s 56 of that Act, or r 36.09(1)(c) of the Federal Court Rules 2011 (Cth) to dismiss the appeal for failure to provide ordered security for costs.' 'Whether it was appropriate to dismiss the appeal where the appellant had not complied with the order to provide $20,000 security for costs and had provided no explanation or application for extension of time.']

Ratio Decidendi

The appellant had been properly served with the interlocutory application and had adequate notice of the hearing but did not appear or provide a proper explanation. He had failed to provide the $20,000 security for costs ordered on 28 August 2018, had not obtained the setting aside of that order, had not sought an extension of time, and had provided no explanation for non-compliance. In those circumstances, the Court exercised its power under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal.

Court Disposition

The appeal was dismissed.

Orders

  • ['The appeal be dismissed.' "The Appellant is to pay the Respondents' costs of, and incidental to, the appeal including the costs of, and incidental to, the Interlocutory Application filed on 21 January 2019."]