Federal Court of Australia

Li v Nursing and Midwifery Board of Australia (stay of costs orders) [2026] FCA 1096

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of orders made on 10 June 2026 is varied under r 39.05 of the Federal Court Rules 2011 (Cth), to read as follows:

2.    The Applicant pay the Respondents’ costs, fixed in the sum of $14,000 $13,560.62.

2.    Subject to Order 3 below, Order 2 of orders made on 10 June 2026, as varied by Order 1 above, is stayed under rr 41.03 and 41.11 of the Rules:

(a)    pending determination of the Applicant’s application for an extension of time and leave to appeal from the orders made on 10 June 2026;

(b)    if leave is granted, pending determination of the appeal; or

(c)    until further order.

3.    The stay in Order 2 above ceases to operate if the Applicant does not bring an application for an extension of time and leave to appeal by 4.00pm on Friday 4 September 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Applicant (Ms Li) brought proceedings against the Respondents, seeking judicial review of certain decisions made under the Health Practitioner Regulation National Law (Victoria). On 10 June 2026, I made orders (relevantly) summarily dismissing the application (order 1), and ordering that Ms Li pay the Respondents’ costs, fixed in the sum of $14,000 (order 2): see Li v Nursing and Midwifery Board of Australia [2026] FCA 733 (Li (No 1)). Ms Li has now filed an interlocutory application dated 28 July 2026 (accepted for filing on 3 August 2026) seeking a stay of order 2 (the costs order), pending determination of the Applicant’s application for an extension of time and leave to appeal and, if leave is granted, pending determination of the appeal, or until further order.

2    The Respondents have consented to the costs order being stayed. However, the stay should not be open-ended: instead, this stay of the costs order will expire if the Applicant does not bring an application for leave to appeal and an extension of time within four weeks; that is, by Friday 4 September 2026. As explained below, it is also necessary to revise the amount of costs, to correct an error in calculation.

3    Materials before the Court: Ms Li has filed an affidavit dated 30 July 2026 in support of her application. The parties agree to this interlocutory application being determined without a hearing. I am satisfied that this issue can be determined without an oral hearing, because there is no real issue of fact to be determined and the legal arguments can be dealt with adequately by written submissions: see Federal Court of Australia Act 1976 (Cth) s 20A(2)(c).

background

4    Li (No 1) (Jun 2026): The background to this matter is set out in Li (No 1) at [5]-[9]. Relevantly, I summarily dismissed Ms Li’s judicial review application, on the basis that this Court did not have jurisdiction: Li (No 1) at [17]-[41]. I found that Ms Li should pay the Respondents’ costs: Li (No 1) at [57]-[65]. I determined that the Respondents’ costs should be payable in a lump sum, and calculated as approximately 60% of their costs: Li (No 1) at [66]-[73]. In calculating the 60% figure, I used GST-inclusive figures: see Li (No 1) at [66].

5    Application for stay of costs order (Jul-Aug 2026): As noted, Ms Li has now applied for a stay of the costs order in Li (No 1). Her affidavit in support makes the following points:

(1)    On 29 July 2026, the Respondents sent Ms Li a “First and Final Demand” which required that Ms Li pay the amount of $14,000 no later than 12 August 2026. The attached email chain indicates that the Respondents sent Ms Li an invoice on 11 July 2026 (the day after the Court’s orders), attaching the orders and an invoice, and stating that payment was due within 30 days of the invoice date. Ms Li states, however, that the 10 June 2026 orders do not specify that payment is required by 12 August 2026.

(2)    Ms Li states that she intends to seek leave to appeal against Order 2 of the 10 June 2026 orders. She states that she has not yet filed an application for leave to appeal before 10 July 2026 because:

(a)    she did not receive the judgment until 2 July 2026, when she returned to Melbourne from overseas;

(b)    she only received the transcript of the hearing (the case management hearing on 29 April 2026) on 29 July 2026, and she “need[ed] this essential evidence to get legal advice for my appeal”;

(c)    her case is complex, and it is a critical step for her to obtain proper legal advice and representation for the appeal “under the principle of procedural fairness”; and

(d)    she is currently waiting for responses from solicitors and barristers, “who require time to review my complex case, which involves a significant volume of documents exceeding 500 pages”.

(3)    Ms Li states that she has “valid and strong reasons” to appeal against the costs order. The proposed grounds are whether she was afforded an adequate opportunity to respond to the Respondents’ supplementary costs evidence filed on 5 June 2026, and whether the amount was calculated using GST-inclusive figures despite the Respondents’ stated entitlement to input tax credits.

(4)    Ms Li states that she will suffer hardship if she is required to pay $14,000, as she will be unable to pay “mortgage, food, medical or child-care expenses”. She states that the Respondents are national regulatory bodies with substantial public resources, and a stay of the costs order will not cause them significant prejudice or harm.

(5)    Ms Li states that, unless a stay is granted, she may be exposed to enforcement action before the Court determines her application for an extension of time and leave to appeal. She states she is self-represented and has limited financial resources at the moment, and asks the Court to determine the stay application on the papers.

Consideration

6    Stay of orders: This Court has power under the Federal Court Rules 2011 (Cth) to stay its orders, pending an appeal: see rr 36.08(2), 41.03, 41.11.

7    One widely-cited summary of principles for granting a stay of orders pending an appeal is by Jagot J in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2) [2010] FCA 1212; (2010) 88 IPR 633 at [15]. Another widely-cited summary of principles in this area is by the Full Court in Quach v MLC Limited [2022] FCAFC 202 at [81]. These principles apply to a stay of a costs order: Urban Alley Brewery Pty Ltd v La Sirene Pty Ltd (No 2) [2020] FCA 351 at [50] (O’Bryan J), and the cases cited. And the Court can grant a stay, even in advance of an appeal being brought: see for example Siemens WLL v BIC Contracting LLC (stay) [2023] FCA 1669 at [5] (Stewart J).

8    The fact that the Respondents consent to the costs order being stayed means it is not necessary to consider these principles in any detail. The Respondents, as model litigants, do not insist on pursuing their legal entitlements at this stage, and I would not disturb that decision.

9    Stay will expire if an application is not brought within 4 weeks: However, it appears from Ms Li’s affidavit that she has not yet brought an application for an extension of time and leave to appeal. The stay of these costs orders should not be open-ended, and should require Ms Li to bring an application for an extension of time and leave to appeal within a reasonable period. That period includes time for her to attempt to find legal assistance. It is not open to Ms Li to delay bringing an application for an extension of time and leave to appeal (and to refuse to pay costs in the meantime) until she has in fact obtained legal assistance. It has already been five weeks since she says she became aware of the judgment, and eight weeks since the orders were made. Although she says the matter is complex, it appears from her affidavit that she is only challenging the decision to award costs (not the dismissal of her judicial review application). And in any event her judicial review application was dismissed on purely legal grounds. So there is no need for any legal adviser to analyse 500 pages of documents, or the transcript of the case management hearing in April 2026: cf [5](2) above.

10    I consider that a reasonable period for bringing an application for leave to appeal and an extension of time is four weeks. The stay will expire, if Ms Li has not brought an application for leave to appeal and an extension of time within that period. In that situation, it would be open to Ms Li to renew her stay application. But she is likely to find that the Respondents and the Court are much less receptive. If Ms Li cannot find legal assistance but still wishes to bring an application for an extension of time and leave to appeal, then it will be necessary for her to continue to represent herself.

11    I mention here that Ms Li has questioned the Respondents’ entitlement to require that the costs be paid by a certain date. She states that Order 2 in Li (No 1) does not specify that payment is required by 12 August 2026 (and indeed that order does not specify any date for payment). However, an order takes effect on the date on which it is made: Rules r 39.01. Further, a person ordered to do a thing (here, to pay an amount of costs) must do so within the time specified in the order or, if no time is specified, within 14 days after the date of service of the order upon the person: Rules r 39.02. It appears from Ms Li’s affidavit that the Respondents served Ms Li with the 10 June 2026 orders by email on 11 June 2026.

12    Amount of costs should be corrected: Ms Li in her affidavit raises a number of arguments that she proposes to raise on an appeal. One argument she raises is that the costs order in Li (No 1) was incorrectly calculated using GST-inclusive figures, and should have been calculated using GST-exclusive figures. As explained below, she is correct. That error can and should be corrected by me now, and it is not necessary to wait for any application for leave or an appeal.

13    It is apparent from my reasons for judgment that I intended to award a lump sum of approximately 60% of the Respondents’ costs: see Li (No 1) at [73]. However, I erroneously used GST-inclusive figures in calculating that sum (see Li (No 1) at [66]), whereas the Respondents’ cost affidavits acknowledged that the Respondents were entitled to claim input tax credits in respect of any GST relevant to the claims in the Costs Summary, and provided GST-exclusive figures. Under para 6.5 of the Court’s Costs Practice Note dated 25 October 2016 (GPN-COSTS), the Respondents’ costs should be calculated exclusive of GST.

14    The costs order was interlocutory in nature (because the order dismissing the application for lack of jurisdiction did not finally determine the rights of the parties), and did not reflect the intention of the Court. Accordingly, there is power to vary that order under r 39.05 of the Rules. The affidavits previously filed by the Respondents on costs indicate that 60% of the Respondents’ costs up to 5 June 2026, calculated on a GST-exclusive basis, is $13,560.62. Order 2 of the orders made on 10 June 2026 should be varied accordingly.

orders

15    Order 2 in Li (No 1) is stayed pending the determination of Ms Li’s application for an extension of time and leave to appeal and, if leave is granted, pending determination of the appeal. However, that stay will expire if an application is not brought before 4.00pm on Friday 4 September 2026. In addition, Order 2 in Li (No 1) is varied, to provide that Ms Li is to pay the Respondents’ costs of the proceeding, in the lump sum of $13,560.62.

Associate:

Dated:    7 August 2026