Background
He Li brought judicial review proceedings against the Nursing and Midwifery Board of Australia and the Australian Health Practitioner Regulation Agency concerning decisions under the Health Practitioner Regulation National Law (Victoria). On 10 June 2026, the Federal Court summarily dismissed the proceeding for want of jurisdiction and ordered Ms Li to pay the respondents’ costs, fixed at $14,000.
Ms Li, who was self-represented, sought a stay of the costs order while she pursued an extension of time and leave to appeal. She said immediate payment would cause financial hardship and expose her to enforcement action. The respondents consented to a stay, but the Court also identified that the original lump-sum costs calculation had incorrectly included GST.
The Court’s Holding
Hill J varied the costs order from $14,000 to $13,560.62. The original reasons had intended to award about 60% of the respondents’ costs, but the calculation used GST-inclusive figures even though the respondents could claim input tax credits. Under the Court’s Costs Practice Note, the costs had to be calculated exclusive of GST.
The Court stayed the corrected costs order pending determination of Ms Li’s proposed application for an extension of time and leave to appeal and, if leave were granted, pending the appeal. The stay was conditional: it would cease if she did not file the extension and leave application by 4.00 pm on 4 September 2026. The Court stressed that the stay could not remain open-ended while Ms Li sought legal assistance.
Key Takeaways
- A costs order may be stayed before an appeal is filed, particularly where the successful party consents.
- A stay pending a proposed appeal can be limited by a deadline for filing the appeal-related application.
- Where a party is entitled to input tax credits, lump-sum costs should be calculated exclusive of GST.
Why It Matters
The decision illustrates the Federal Court’s willingness to preserve an appellant’s position through a temporary stay, while imposing a firm timetable to prevent costs enforcement from being delayed indefinitely. It also confirms that an identifiable GST error in an interlocutory costs order may be corrected by the primary judge without awaiting an appeal.