Nyoni v Pharmacy Board of Australia

In the appeal before the Full Court, the Appellant, Mr Nyoni, sought to challenge the primary judge's decision in the Federal Court of Australia that the Respondents, the Pharmacy Board of Australia and the Australian Health Practitioner Regulation Agency, were not liable for damages for conduct which he alleged contravened s 18 of the Australian Consumer Law. Mr Nyoni's claims were founded on the Respondents' recording on a National Register and on the website of AHPRA in December 2013 of a condition on his registration as pharmacist that he was "prohibited from taking or self‑administering Schedule 8 drugs, save for those that may be legally prescribed for him". The primary judge rejected Mr Nyoni’s claim, holding that the Respondents’ publication of the condition on the Register was pursuant to a mandatory statutory duty and was not conduct "in trade or commerce". The Respondents applied for an order for security for their costs of the appeal.

The legal issues before the Full Court were whether an order for security for costs should be made, and if so, the amount of the security. The Full Court considered whether Mr Nyoni had prospects of success on the appeal and whether there was a risk that a costs order will not be satisfied, and the effect of Mr Nyoni’s impecuniosity. The Full Court held that the Appellant was impecunious and that there was a significant risk that any order for costs would not be satisfied. The Full Court also held that the appeal had prospects of success. The Full Court held that an order for security for costs was warranted, and ordered that Mr Nyoni provide security in the sum of $20,000 within 28 days of the date of the order. The appeal was stayed until the security is given and the parties were granted liberty to apply.