Background
Shamyal Haroon Jamil commenced judicial-review proceedings and later appealed. The Medical Board of Australia, the second respondent, sought more than $30,000 as security for the costs of the appeal, which was listed for hearing in December 2026. On 31 July 2026, the Court ordered Jamil to provide security, but fixed a lower amount than the Board sought and allowed him several weeks to provide it.
The Court also ordered Jamil to pay the Board’s costs of the security application, while giving him a short opportunity to argue against that order. Jamil then asked the Court to reserve those costs, make them costs in the appeal, make no costs order, or prevent taxation and enforcement until his challenge to the security order and the substantive appeal had been determined.
The Court’s Holding
Livesey ACJ declined to vacate or vary the costs order. The security order remained operative unless and until set aside; the filing of an application for leave to appeal did not make it provisional or ordinarily justify postponing a costs determination. Although the Board obtained less security than it requested, the central dispute was whether any security should be ordered, and the Board succeeded on that issue. The amount was only peripheral.
The Court also rejected Jamil’s reliance on his limited income and assets. He had chosen to commence the judicial-review proceeding, pursue the appeal, and resist the security application; possible stultification had already been considered when security was ordered; and impecuniosity alone does not justify denying a successful party its costs. Concerns about immediate taxation and enforcement were addressed by r 194.4(8) of the Uniform Civil Rules 2020 (SA), under which costs generally are not taxed or payable until final determination of the proceeding unless the Court orders otherwise. Jamil therefore remained liable for the Board’s costs of the security application on the standard basis.
Key Takeaways
- A pending challenge does not ordinarily suspend an existing order or require the costs of the underlying application to be reserved.
- Obtaining less security than requested did not amount to mixed success where the principal dispute was whether security should be ordered at all.
- An unsuccessful party’s lack of financial means does not, without more, displace the usual rule that costs follow the event.
Why It Matters
The decision confirms that costs of a security-for-costs application may be determined as a discrete matter rather than left to the outcome of the substantive appeal. A party challenging an interlocutory order should not assume that filing an appeal or leave application makes the order provisional or postpones the usual costs consequences.
It also distinguishes between liability for costs and when those costs may be taxed and enforced. In South Australian civil proceedings, r 194.4(8) ordinarily postpones taxation and payment until final determination, reducing the need for a separate order delaying enforcement.