Nyoni v Pharmacy Board of Australia [2018] FCA 1313

Nyoni v Pharmacy Board of Australia [2018] FCA 1313

Security for costs was ordered because, although the order may stultify the Appellant's appeal, he was an undischarged bankrupt with no ability to satisfy an adverse costs order, the appeal could not be assessed as having strong prospects, the Court could not be satisfied that his impecuniosity was attributable to the present Respondents, and his history of frequent litigation and unpaid adverse costs orders made security appropriate. The amount sought was reduced because some claimed items should not be included and $20,000 was appropriate for costs yet to be incurred.

Jurisdiction
Australia
Judgment Date
28 August 2018
Procedural Posture
Application for Security for Costs on Appeal / Interlocutory Application in an Appeal to the Full Court
Outcome
Application for security for costs granted in part; appeal stayed until security is given.
Legal Topics
['security for Costs on Appeal' 'impecuniosity' 'prospects of Success' 'stultification of Appeal' 'stay of Appeal Pending Security']
['costs' 'civil Procedure' 'appellate Procedure'] ['security for Costs on Appeal' 'impecuniosity' 'prospects of Success' 'stultification of Appeal' 'stay of Appeal Pending Security']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Security for Costs on Appeal / Interlocutory Application in an Appeal to the Full Court

Legal Issues

  1. 1 ["Whether the Appellant should provide security for the Respondents' costs of the appeal under s 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011 (Cth)." 'Whether there was a risk that any adverse costs order would not be satisfied because the Appellant was an undischarged bankrupt and impecunious.' 'Whether an order for security would stultify a reasonably arguable appeal.' "Whether the Appellant's impecuniosity was attributable to the Respondents' conduct." 'What amount of security should be ordered.']

Ratio Decidendi

Security for costs was ordered because, although the order may stultify the Appellant's appeal, he was an undischarged bankrupt with no ability to satisfy an adverse costs order, the appeal could not be assessed as having strong prospects, the Court could not be satisfied that his impecuniosity was attributable to the present Respondents, and his history of frequent litigation and unpaid adverse costs orders made security appropriate. The amount sought was reduced because some claimed items should not be included and $20,000 was appropriate for costs yet to be incurred.

Court Disposition

Application for security for costs granted in part; appeal stayed until security is given.

Orders

  • ["Within 28 days of the date of this order, the Appellant is to provide security in the sum of $20,000 for the Respondents' costs of the appeal." 'Such security is to be provided by way of payment into Court or by the provision of a bank guarantee in a form acceptable to the Registrar.' 'The appeal be stayed until...