Nyoni v Pharmacy Board of Australia

1. The appeal be dismissed.
2. 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. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 On 28 August 2018, the Court ordered the appellant to provide, within 28 days, security for the respondents' costs of this appeal in the sum of $20,000. He was required to do so by way of payment into Court or by the provision of a bank guarantee in a form acceptable to a Registrar. 2 The Court also ordered that the appeal be stayed until the security is given. 3 The circumstances in which the Court made the orders are set out in Nyoni v Pharmacy Board of Australia [2018] FCA 1313. I will refer to this as the "Security Judgment". 4 The appellant has not complied with the orders made in the Security Judgment. In particular, he has not provided the ordered security in either of the forms contemplated by the order. The appellant did, however, apply to have the order for security set aside. That application was dismissed by McKerracher J on 8 November 2018: Nyoni v Pharmacy Board of Australia [2018] FCA 1707. 5 By interlocutory application filed on 21 January 2019, the respondents to the appeal seek an order that the appeal be dismissed by reason of the appellant's failure to comply with the orders of 28 August 2018. 6 The appellant has not attended at today's hearing. A number of matters indicate that the appellant has had proper and adequate notice of today's hearing and that he has made a decision not to attend. They include the following. 7 When the interlocutory application of the respondents was lodged, it was referred to my Chambers for the allocation of a hearing date. On 29 January 2019, my Associate sent an email to both parties, the substance of which was as follows: I refer to the Interlocutory Application lodged by the respondents last week in the above matter. Justice White has listed the application for hearing at 2:15pm (SA time) / 11.45 am (WA time) on 18 February 2019. White J will hear the application from Adelaide, but the Court will arrange a videolink to Perth for the parties to appear from the West Australian Federal Court. (Emphasis in the original) 8 Later on 29 January 2019, my Associate received an email from the appellant, the substance of which was as follows: Dear Associate Your email of today refers. At the time the email was received by applicant, respondents had not and still have not served any documents purportedly filed on 21 January 2019. Even the Court portal was not showing any documents until applicant rang the registry. Furthermore, this proceeding is under Review in proceeding NSD35/2019 and the applicant seeks to set aside the security of costs order. Applicant respectively requests that the respondents' application dated 21 January 2019 and the hearing listed for 18 February 2019 be vacated. Please kindly bring this to His Honour's attention. 9 In sequence, the next event was the service of the interlocutory application on the appellant. That occurred on the afternoon of 29 January 2019. Service was effected by email, with the solicitor for the respondents providing the interlocutory application filed on 21 January 2019, together with Ms McKenzie's affidavit, sworn 21 January 2019. The email confirmed to the appellant that the application was listed for 2.15 pm today. 10 The receipt by the appellant of that email is evidenced by the fact that he sent an email later on 29 January to Ms McKenzie, copied to my Associate, the substance of which said: I draw your attention to my email sent to the Associate earlier today. Further, the attached documents do not mention "interim" that you referred to in your email. Please explain what you mean by "interim"? 11 By an email sent on 30 January 2019, my Associate responded to the appellant's request that the hearing for 18 February 2019 be vacated. The substance of her email was as follows: I refer to Mr Nyoni's email of 29 January 2019. In the absence of consent by the Respondents to the appeal, Justice White will not vacate the hearing listed for 18 February 2019. Any application for the adjournment of that hearing can be made at the hearing, but proper notice that an application to adjourn will be made should be given both to the Court and to the Respondents. Both parties should be prepared to proceed with the hearing of the Respondents' application for the dismissal of the action in the event that the adjournment application (if made) is refused. I confirm that the hearing is listed for 2:15 pm (SA time) and 11:45 am (WA time) and will be by videolink from the Federal Court in Perth to the Federal Court in Adelaide. (Emphasis in the original) 12 This email was sent to the same address as that to which the earlier emails had been sent. 13 When it became apparent that the appellant was not in Court at the time today's hearing was to commence, my Associate telephoned him at the number he had provided. It is apparent from what the appellant said to my Associate that he is aware of today's hearing, but said that he thought that it had been adjourned. He also referred to other proceedings which he had commenced, apparently the proceedings in Action No NSD35/2019. 14 Given the terms of my Associate's email of 30 January 2019, the appellant could not have been under any apprehension that the hearing of the application would not proceed today and that, if he sought an adjournment he would not have to attend. 15 The other proceedings to which the appellant referred in his email of 29 January 2019 to my Associate have no apparent relationship with the present appeal or application. 16 In these circumstances, I am satisfied that the appellant has been properly served with the interlocutory application and that he has had proper and adequate notice of today's hearing. He has not provided any proper explanation for his non-attendance. 17 I am satisfied that it is appropriate to proceed in the absence of the appellant, noting that it is contemplated by r 17.04 of the Federal Court Rules 2011 (Cth) (the FCR) that an interlocutory application may be heard and determined in the absence of a party if service has been effected on the party but the party does not appear. 18 Section 56 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), which vests power in the Court to order security for costs for an appeal, provides that, if security is not given in accordance with an order of the Court, the Court or a Judge may order that the proceeding or appeal be dismissed. 19 Likewise, r 36.09(1)(c) of the FCR provides that, if an appellant fails to comply with an order to provide security within the time specified in the order, the other party may apply to have the appeal stayed or dismissed. 20 Section 25(2B) of the FCA Act provides for circumstances in which the appellate jurisdiction of the Court may be exercised by a single Judge as well as by the Full Court. Section 25(2B)(ba) empowers a single Judge to order that an appeal to the Court be dismissed for want of prosecution. Section 25(2B)(bb)(i) empowers a single Judge to make an order that an appeal to the Court be dismissed for failure to comply with a direction of the Court. It has been held that the power vested by subs (2B)(ba) and (bb)(i) may be exercised in the event of failure by an appellant to comply with an order for the provision of security: Mead v Mead (No 2) [2010] FCA 432 at [3]-[4]. 21 The respondents seek the dismissal of the appeal on the sole basis that the appellant has not complied with the order of 28 August 2018 concerning the provision of security. They thereby invoke s 25(2B)(bb)(i). 22 The appellant has not provided any explanation for his failure to comply with the orders of 28 August 2018, nor has he sought an extension of time in which to do so. It seems reasonable to suppose that the appellant may lack the ability to provide the security, given that he is an undischarged bankrupt - see [14] of the Security Judgment. As the respondents have noted, the appellant has had considerable time since the expiry of the 28 days for the provision of the security to which the Security Judgment referred. 23 By reason of the stay order on 28 August 2018, the appeal has been dormant since that time (apart from the appellant's application to have the security order set aside). In the ordinary course of things, it is undesirable that an appeal be dormant for a long period. Appellate proceedings should not languish unprosecuted indefinitely without there being a proper basis for that course. 24 In all of the circumstances, I am satisfied that it is appropriate for the Court to exercise the power pursuant to s 25(2B)(bb)(i) of the FCA Act and to dismiss the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.