JAMIL v SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ANOR [2026] SASCA 98

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE ACTING CHIEF JUSTICE LIVESEY) [2026] SASCA 88 Applicant: SHAMYAL HAROON JAMIL In Person via AVL First Respondent: SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL Excused - Solicitor: CROWN SOLICITOR (SA) Second Respondent: MEDICAL BOARD OF AUSTRALIA Counsel: MS H LUU - Solicitor: MINTERELLISON Hearing Date/s: On the papers File No/s: CIV-26-009781 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. JAMIL v SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ANOR [2026] SASCA 98 Judgment of the Court of Appeal (The Honourable Justice Bleby and the Honourable Justice David) 18 August 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS Application for leave to appeal against an order for security of costs. On 30 June 2026, the second respondent, the Medical Board of Australia, filed an Interlocutory Application seeking that the applicant provide security for costs of an appeal which has been listed for argument before the Court of Appeal on 11 December 2026. On 31 June 2026, a judge of the Supreme Court granted the application, ordering that the applicant provide security for the Medical Board’s costs in the amount of $15,000. He further ordered that if that sum was not paid into Court on or before the due date, the substantive appeal proceedings would be stayed and the listing of the hearing on 11 December 2026 vacated. The applicant has filed a Notice of Appeal against the decision ordering security for costs together with six proposed grounds of appeal. Broadly speaking, the grounds in support of the application for leave to appeal are: • the decision is attended with sufficient doubt to warrant reconsideration on appeal for the reasons identified in the applicant’s proposed grounds of appeal; -- 1 of 16 -- • the application raises issues of principle and general importance; and • allowing the decision to stand would work a substantial injustice. Held (by the Court), dismissing the application for leave to appeal: 1. Having regard to the proposed grounds of appeal to a degree, the prospect of success on the proposed appeal is extremely low. Accordingly, the decision is not attended with sufficient doubt to warrant reconsideration on appeal. 2. The appeal does not raise any question of principle or genuine importance. 3. Allowing the decision to stand would not result in a substantial injustice. Service and Execution of Process Act 1992 (Cth); Uniform Civil Rules 2020 (SA) r 213.5, referred to. Cowell v Taylor (1885) 31 Ch D 34; Diakos v Mason [2010] SASC 108; Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; Draoui v Le [2020] SASC 155; House v The King (1936) 55 CLR 499; Jamil v Medical Board of Australia [2024] SASC 90; Jamil v Medical Board of Australia [2025] SASCA 103; Jamil v Medical Board of Australia [2025] SASCA 130; Jamil v Medical Board of Australia [2026] HCADisp 35; Jamil v Medical Board of Australia [2026] HCADisp 36; Jamil v South Australian Civil and Administrative Tribunal & Anor [2026] SASCA 75; Jamil v South Australian Civil and Administrative Tribunal & Anor (No 2) [2026] SASCA 88; Jorgensen v JML Rose Pty Ltd (Security for Costs) [2026] FCA 64; Lesses v Maras [2016] SASC 117; Medical Board of Australia v Jamil [2023] SACAT 104; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Myers v Medical Board of Australia [2025] VSC 363; Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2019] SASC 124; Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247; Sands v State of South Australia [2013] SASC 105; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Sean Investments Pty Ltd v MacKellar (1982) 42 ALR 676; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18; Thompson v Robinson [2005] QCA 253; Timbercorp Finance Pty Ltd (in liq) v Tomes [2015] VSCA 322; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388; Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) [2011] WASC 161, considered. -- 2 of 16 -- JAMIL v SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ANOR [2026] SASCA 98 Court of Appeal – Civil: Bleby and David JJA 1 THE COURT: This is an application for leave to appeal against an order for security for costs. Background 2 In late 2023, the South Australian Civil and Administrative Tribunal (‘the Tribunal’) made a finding of professional misconduct in respect of the applicant.1 The finding concerned conduct of the applicant in 2020 with respect to two medical students who were placed at the hospital where the applicant was working. The applicant appealed unsuccessfully to a single judge of the General Division of this Court.2 He sought leave to appeal to the Court of Appeal and applied to adduce further evidence on the appeal. He was unsuccessful in both respects.3 Subsequently, the High Court dismissed applications for special leave to appeal.4 3 The Tribunal listed the matter for a sanctions hearing on 3 June 2026. On 28 May 2026, the applicant filed an Originating Application for Review of the original decision making the findings of professional misconduct. He expressed this to be on the basis that he had discovered evidence that the Tribunal’s decision was tainted by perjury and fraud. He necessarily sought an extension of time to commence the Originating Application for Review. On 2 June 2026, a judge refused the application for an extension of time and dismissed the Originating Application. This was on the basis that the application had no reasonable prospect of success, and that the applicant was attempting to relitigate matters that had already been determined by the Tribunal, a judge of the General Division and the Court of Appeal. 4 The applicant filed a Notice of Appeal against that decision on the same day. That Notice of Appeal originated the present proceedings. The applicant also filed an Interlocutory Application seeking a stay of the sanction proceedings scheduled for the next day. Justice Bleby heard and dismissed that application on the morning of 3 June 2026. The sanctions hearing proceeded, notwithstanding an application by the applicant to adjourn it pending the outcome of the appeal. On 17 June 2026, the Tribunal made orders: 1 Medical Board of Australia v Jamil [2023] SACAT 104. 2 Jamil v Medical Board of Australia [2024] SASC 90. 3 Jamil v Medical Board of Australia [2025] SASCA 103; Jamil v Medical Board of Australia [2025] SASCA 130. 4 Jamil v Medical Board of Australia [2026] HCADisp 35; Jamil v Medical Board of Australia [2026] HCADisp 36. -- 3 of 16 -- [2026] SASCA 98 The Court 2 • reprimanding the applicant; • disqualifying him from applying for registration as a health practitioner; • imposing a period of four years during which the applicant may not apply for a reinstatement order; and • prohibiting the applicant from providing any health services until he is again registered as a health professional. 5 On 26 June 2026, Livesey P dismissed an application by the applicant to have the hearing of the appeal expedited.5 The appeal remains listed for hearing before the Court of Appeal on 11 December 2026. 6 On 30 June 2026, the Medical Board of Australia filed an Interlocutory Application on the appeal, seeking that the applicant provide security for its costs of the appeal in an amount of a little over $30,000. On 31 July 2026, Livesey P granted the application, ordering that the applicant provide security for the Medical Board’s costs in the amount of $15,000.6 He further ordered that if that sum was not paid into Court on or before 4.00 pm on Friday, 28 August 2026, the appeal proceedings would be stayed and the listing of the hearing on 11 December 2026 vacated. 7 Mr Jamil has now filed a Notice of Appeal against the decision ordering security for costs.7 The Notice of Appeal incorporates a statement of grounds on which he seeks leave to appeal. He also filed an Interlocutory Application in the substantive appeal proceedings in which he sought the following orders:8 1. The time for compliance with the order made 31 July 2026 requiring the Applicant to provide security for the Second Respondent’s costs in the sum of $15,000 by payment into Court on or before 4.00 pm on Friday, 28 August 2026 be extended until the determination of the Applicant’s application for permission to appeal. 2. Alternatively, the operation of the stay of these proceedings provided for by the orders of 31 July 2026 be suspended until that determination. 3. The listing of the hearing of the appeal on 11 December 2026 not be vacated pending that determination. 4. The application for permission to appeal be expedited and, if practicable, listed for hearing before 28 August 2026. 5. The costs of this application be the Applicant’s costs in the appeal, alternatively be reserved. 5 Jamil v South Australian Civil and Administrative Tribunal & Anor [2026] SASCA 75. 6 Jamil v South Australian Civil and Administrative Tribunal & Anor (No 2) [2026] SASCA 88. 7 Notice of Appeal (FDN 1 of CIV-26-009781). 8 Interlocutory Application (FDN 34 of CIV-26-007122). -- 4 of 16 -- [2026] SASCA 98 The Court 3 6. Such further or other orders as the Court considers appropriate. 8 These orders sought do not fully take into account the operation of r 213.5 of the Uniform Civil Rules 2020 (SA) (‘UCR’), part of the effect of which is to prescribe that in the ordinary course, an application for permission to appeal to the Court of Appeal will ordinarily be determined without an oral hearing, with the applicant having filed the essential documents for consideration of the application, including written submissions, and without the parties filing any affidavit evidence. Nevertheless, the applicant’s intent is clear and understandable. In the event that he fails to provide security by the due date, the appeal will be stayed. He wishes to have his application for leave to appeal against the order for security for costs determined before that date or alternatively, not have that date prejudice his application for leave to appeal. 9 In light of that concern, on 5 August 2026, the Court indicated to the parties by email that it intended to proceed as follows: • Both applications will be listed for next Wednesday, 12 August 2026 at 10.15 am, before the Court of Appeal comprising Justice Bleby and Justice David. In that regard: ◦ the application for leave to appeal will be listed for mention; and ◦ the Interlocutory Application seeking an extension of time, etc., will be listed for argument. • On the application for leave to appeal, in light of the urgency of the applications and Mr Jamil’s self-represented status, and in circumstances where Mr Jamil has filed Written Submissions in support of the application for leave to appeal: ◦ further compliance with UCR r 213.5(2) is not required; ◦ consistently with UCR r 213.5(3), the Court will not receive any affidavit or other evidence on the application for leave to appeal; and ◦ consistently with UCR r 213.5(7), the Court does not propose to hear oral argument on the application for leave to appeal and will determine that application on the papers. • On the Interlocutory Application, the Court will hear oral argument at the hearing on Wednesday, 12 August 2026. The Court intends to determine both applications prior to 4.00 pm on Friday, 28 August 2026. 10 These directions left open the possibility of oral argument on the Interlocutory Application if that became necessary. However, the Court apprehended that given it intended to determine the application for leave to appeal prior to 28 August 2026 in the manner contemplated by UCR r 215.3(7), it would be unlikely that a stay of Livesey ACJ’s orders pending determination of the application for leave to appeal would be necessary. In the event, on 12 August 2026, the Court heard short argument on the orders sought and varied the orders -- 5 of 16 -- [2026] SASCA 98 The Court 4 of Livesey ACJ slightly, in order to accommodate Mr Jamil’s concerns to a degree.9 11 The substantive matter for consideration is Mr Jamil’s application for leave to appeal against Livesey ACJ’s order that he must provide security for costs in the amount of $15,000. Livesey ACJ’s reasons for ordering security 12 Livesey ACJ summarised accurately the applicable principles on an application for security for costs on an appeal. He observed that the Court will more readily consider ordering security on an appeal where the appellant has already had the benefit of a judicial determination of the issues.10 In that regard, however, he noted that in the present matter, the primary judge had determined the application for judicial review summarily. Against that, the Medical Board submitted that Mr Jamil was attempting to argue on the judicial review the same issues that had been addressed previously by the single judge and the Court of Appeal, with the difference that he was now using the label of fraud.11 13 Put briefly, the allegation of fraud relies on the transcript of an interview in 2020 with one of the complainants, AB, and a letter from AB’s solicitor in 2026 advising that AB no longer had access to any of her Facebook Messenger communications with Mr Jamil. AB had given evidence before the Tribunal that she no longer had access to the messages and screenshots of messaging with Mr Jamil. In a signed statement she said they had disappeared. 14 There was expert evidence before the Tribunal that messages of this kind cannot disappear automatically but must be deleted. Mr Jamil challenged AB’s credibility before the Tribunal, which included a challenge to the effect that she had deliberately and dishonestly deleted or doctored the messages before her phone was provided for expert examination. The Tribunal did not accept that. Its finding in favour of AB’s credibility was, however, qualified. 15 Mr Jamil’s present contention is that the effect of the identified evidence is that it proves perjury on the part of AB and fraud on the Tribunal. 16 Mr Jamil acknowledged that he had the opportunity to challenge the credit of the witness AB before the Tribunal. However, he has submitted that he did not understand the significance of a case based on perjury and fraud. He has been self-represented throughout.12 9 Record of Outcome dated 12 August 2026 (FDN 40 of CIV-26-007122). 10 [2026] SASCA 88 at [9], citing Cowell v Taylor (1885) 31 Ch D 34 at 38 (Bowen LJ); Thompson v Robinson [2005] QCA 253 at [6] (Keane JA); Diakos v Mason [2010] SASC 108 at [10] (Kourakis J); Sands v State of South Australia [2013] SASC 105 at [32] (White J); Lesses v Maras [2016] SASC 117 at [7] (S Doyle J). 11 [2026] SASCA 88 at [10]. 12 [2026] SASCA 88 at [13]. -- 6 of 16 -- [2026] SASCA 98 The Court 5 17 Livesey ACJ set out accurately the matters to be considered on an application for security for costs:13 When the Court determines an application for security for the costs of an appeal, it will usually consider: 1. Whether the appellant is impecunious, which includes the appellant’s capacity or willingness to meet an adverse costs order without putting the respondent to undue delay and expense; 2. Whether the appellant has demonstrated that an order for security will stultify the appeal; 3. The likely prospects of success or failure on appeal; 4. Whether the appeal concerns a matter of public importance or has implications beyond the interests of the parties before the Court; and 5. Whether the appellant resides within the jurisdiction, including whether the appellant has assets within the jurisdiction which are available to a respondent enforcing an adverse costs order. 18 Livesey ACJ observed that these were convenient reference points that assisted in framing what was the exercise of a broad and unfettered discretion, with no one consideration being necessarily decisive.14 He noted the following matters: • Mr Jamil resides interstate. He has no significant income or assets with which to meet an adverse costs order;15 • he has some financial support from his family, the extent of which is not clear. He is already facing a large costs burden that he cannot meet;16 • there is a real prospect that an order for security will stultify the prosecution of the appeal. While that weighed against the making of an order, it was necessary to balance that against Mr Jamil’s inability to satisfy an adverse costs order, the absence of assets within the jurisdiction and the apparent prospects of success;17 • as to the prospects of success, the Medical Board submitted that the 2020 transcript and the 2026 letter did not significantly alter the challenge to AB’s evidence that Mr Jamil made before the Tribunal in 2023. It submitted that the judicial review proceedings were just another attempt to relitigate the matter determined by the Tribunal and in respect of which Mr Jamil had 13 [2026] SASCA 88 at [11]. 14 [2026] SASCA 88 at [12]. 15 [2026] SASCA 88 at [16]. 16 [2026] SASCA 88 at [17]. 17 [2026] SASCA 88 at [18]. -- 7 of 16 -- [2026] SASCA 98 The Court 6 exhausted his appeal rights and failed to adduce further evidence on the appeal;18 • Mr Jamil now sees the matters concerning the evidence of AB in a new light, after he received the correspondence from AB’s solicitors this year, and that he is genuinely prosecuting the proceedings. He accepted that Mr Jamil is understandably anxious about his loss of professional standing and inability to practise;19 • the obstacles to the appeal, however, were formidable. It would be necessary for Mr Jamil to demonstrate that he should have an extension of time to commence the proceedings for judicial review and that he should be granted leave to appeal. As to the merits, while not ruling on the competing contentions, it did not appear to Livesey ACJ that Mr Jamil’s prospects of appeal were particularly strong, accepting that he had not yet had an opportunity to put his full argument.20 19 Livesey ACJ expressly balanced all these relevant considerations and gave particular weight to a lack of assets in the jurisdiction. He concluded that this was a proper case in which to make an order for security for costs. However, he made an order in the relatively low sum of $15,000 and ordered that it be paid by 28 August 2026, allowing four weeks which, he noted, was longer than might ordinarily be permitted to raise security.21 The application for leave to appeal 20 The decision to order security for costs is discretionary. It would be necessary for the applicant to show, on an appeal, that the decision is affected by error of the kind articulated in House v The King:22 It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 18 [2026] SASCA 88 at [24]. 19 [2026] SASCA 88 at [25]. 20 [2026] SASCA 88 at [26]. 21 [2026] SASCA 88 at [27]-[29]. 22 (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). -- 8 of 16 -- [2026] SASCA 98 The Court 7 21 An application for leave to appeal raises the following considerations:23 • whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; • whether the decision raises an issue of general principle or importance; and • whether allowing the decision to stand would work a substantial injustice to the applicant. 22 Mr Jamil has raised six grounds of appeal. They are heavily particularised. Mr Jamil complains, in summary, that: • there was no consideration capable of outweighing the finding that there was a real prospect that an order for security will stultify the appeal, in circumstances where Livesey ACJ had left the merits undetermined, and where the matters relied on were what gave rise to the likely stultification (Ground 1); • it was an error to rely on ‘particularly the absence of assets within the jurisdiction’ as the determining factor, where Mr Jamil was found not to have any assets in this jurisdiction or elsewhere. The location of assets adds nothing to the question (Ground 2); • it was an error to give weight to ‘the apparent prospects of success on an appeal’ while declining to rule on the competing merits contentions (Ground 3); • Livesey ACJ failed to take into account certain submissions Mr Jamil had made (Ground 4); • having found a real prospect of stultification and that Mr Jamil was genuinely prosecuting the proceedings, Livesey ACJ failed to take into account the public interest engaged by the subject matter (Ground 5); • the necessary consequence of stultification of the appeal produced a result that was plainly unjust (Ground 6). 23 Mr Jamil relied on the following grounds in support of the application for leave to appeal: 1. The decision is attended with sufficient doubt to warrant reconsideration on appeal, for the reasons identified in grounds 1 to 6. 23 M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (S Doyle and Livesey JJA); Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18 at [53] (Livesey P and Bleby JA). -- 9 of 16 -- [2026] SASCA 98 The Court 8 2. The application raises issues of principle and general importance: the principles governing the ordering of security which will in practical effect terminate a proceeding, where the court has accepted a real prospect of stultification but has expressly declined to determine the merits; the weight properly given to the absence of assets “within the jurisdiction” where an interstate appellant has no assets in any jurisdiction, having regard to Part 6 of the Service and Execution of Process Act 1992 (Cth); and whether a proceeding invoking the supervisory jurisdiction to set aside a tribunal determination for fraud may be brought to an end, without any adjudication of the fraud, by a security order obtained by the party which obtained and defends that determination. 3. Allowing the decision to stand would work a substantial injustice: although interlocutory in form, the Orders are final in practical effect, terminating without adjudication an appeal not found to be hopeless and a fraud allegation never determined on its merits by any court. 24 With respect to the second of these leave grounds, we are not persuaded that the appeal raises any question of principle or genuine importance. The grounds attack Livesey ACJ’s application of established principle to the circumstances of the substantive appeal. The question is whether he erred in the exercise of his discretion. The injustice of which Mr Jamil complains is simply a posited injustice in this case. Questions of the allocation of weight to relevant considerations do not attract House v The King scrutiny. 25 As to the first leave ground, it is necessary to interrogate the proposed grounds of appeal to a degree. 26 At the heart of Proposed Ground 1 is a complaint that there was no consideration capable of outweighing the finding that there was a real prospect that an order for security would stultify the prosecution of the appeal. In this regard, in Mr Jamil’s submission, Livesey ACJ had expressly declined to ‘rule on the competing merits contentions’ and acknowledged that Mr Jamil had not had an opportunity to put his full argument. He accepted that Mr Jamil was genuinely prosecuting the matter. The effect of the order would be to terminate the matter without an adjudication of the fraud allegation in any forum. Mr Jamil complained that while Livesey ACJ had found that the extent of support Mr Jamil received from his family was not clear, he had not engaged with the ‘unchallenged and unrejected’ evidence of Mr Jamil as to his financial position. This was to the effect that Mr Jamil’s income was limited to Centrelink payments; that he was unable to pay the costs orders that have been made against him; that he had outstanding credit card debts and other loans payable to family members; and that he had no capacity to borrow.24 27 Mr Jamil relied on three essential propositions. The first was that where likely success weighed heavily against a costs order, ‘the converse is not true’ and that it was only where there is ‘no genuinely arguable question of law’ that the prospects 24 Affidavit of Shamyal Haroon Jamil made on 16 July 2026 at [12], [14] and [16] (FDN 28 of CIV-26-007122). -- 10 of 16 -- [2026] SASCA 98 The Court 9 count in favour of security.25 Secondly, stultification ‘can often be determinative’.26 In this regard, Mr Jamil rehearsed numerous authorities on the question of stultification, which are not necessary to traverse. He drew on statements to the effect that courts are ‘usually slow’ to order security that is likely to stultify proceedings with some merit but appeared to accept that the consideration remained discretionary rather than an ‘absolute bar’.27 28 Thirdly, Mr Jamil submitted that where stultification is accepted, security that is terminal in effect ‘has been ordered only upon the Court’s own determination of hopelessness’. In that regard he referred to authorities where security was ordered notwithstanding accepted stultification, on the basis that the appeal had ‘no real prospect of success’.28 29 Mr Jamil’s submissions elevated this third submission to a ‘precondition’ for ordering security. We do not accept that submission. It can be accepted that a court will not usually order security where to do so will stultify the appeal. It can further be accepted that hopelessness will ameliorate – often decisively – the weight to be given to stultification. However, these considerations remain as discretionary considerations that may be afforded greater or lesser weight depending on all the relevant considerations to be factored in. Thus, simply by way of example, in Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor,29 Peek J said, specifically in relation to an application for security for costs on an appeal:30 Importantly, the tendency for an order for security for costs to stultify the appeal can only be one factor to be balanced against other factors such as low prospects of success of the appeal and high risk of the plaintiff being unable to enforce an award of costs. The words of Allanson J in Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) are apposite:31 Even if I were satisfied that the order is likely to stultify the plaintiff’s action, I would still make the order. The amount of the costs that the defendant will incur if this matter proceeds is very large. I must strike a balance between protecting the defendant from the possible consequences of being sued by an impecunious corporation with limited liability, and avoiding injustice to the plaintiff by unnecessarily prejudicing it in the conduct of this litigation. The balance, in my opinion, requires the defendant to have greater protection than that offered by the plaintiff. And in Law of Costs, Dal Pont observes:32 25 Citing Timbercorp Finance Pty Ltd (in liq) v Tomes [2015] VSCA 322 at [18]-[19] (McLeish JA). 26 Citing Draoui v Le [2020] SASC 155 at [74] (Bleby J). 27 Citing Jorgensen v JML Rose Pty Ltd (Security for Costs) [2026] FCA 64 at [64] (Wheelahan J) and the cases cited therein. 28 Citing Myers v Medical Board of Australia [2025] VSC 363 at [83] (Quigley J); Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18], [22]-[27] (Basten JA). 29 [2019] SASC 124. 30 Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2019] SASC 124 at [48]-[49]. 31 [2011] WASC 161, [32]. 32 G E Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018) 1081 [29.106]. -- 11 of 16 -- [2026] SASCA 98 The Court 10 … the case law recognises that the combination of two factors almost invariably dictate an order for security for costs of an appeal – the lack of merit in the appeal and the appellant’s impecuniosity – especially if the defendant is not guilty of delay or other potentially disentitling conduct. … [T]hese two factors combined are, especially where there remain unsatisfied costs orders against the appellant, likely to outweigh the risk that the order will stultify the appeal or an alleged public interest in the appeal. [Citations omitted] (Footnotes in original.) 30 Mr Jamil submitted that there was no example of a case where a court had ordered security that was shown would stultify the appeal where the court had ‘expressly declined to rule on the merits’. In this regard, he placed considerable emphasis on Livesey ACJ’s statement that:33 As to the merits, I am not prepared to rule on the competing contentions. It is inappropriate to do so on an application such as this. 31 Mr Jamil’s characterisation of and reliance upon this statement removes it from its broader context. Obviously enough, this was not the occasion to rule on the merits. That did not, however, prevent Livesey ACJ from going on:34 Having said that, it cannot be said that the prospects on appeal are particularly strong, though it is necessary to recognise that the applicant has not yet had the opportunity to put his full argument. 32 This was a relevant observation to the effect that the appeal did not have strong prospects, qualified appropriately. It was a highly relevant consideration to bring to account and not to be set to one side on the basis that Livesey ACJ did not ‘rule’ on the merits. 33 Mr Jamil’s ultimate submission on this ground was that there was no consideration capable of outweighing the accepted stultification. The effect of the submission is that on Livesey ACJ’s consideration of the matter, it was not open to order security. We do not consider this ground to be reasonably arguable. It may well be that Mr Jamil could establish that a court differently constituted would give greater weight to the prospect of stultification. However, the contention that security was not open, because of the combination of found stultification and a failure to rule on the merits, has little or no prospect of success. It is wrong in principle and ignores that it was nonetheless open to Livesey ACJ to give weight to the prospects of success on the appeal as he assessed them, as well as to other relevant considerations. 34 Proposed Ground 2 complains that Livesey ACJ erred in treating ‘particularly the absence of assets within the jurisdiction’ as ‘the consideration warranting an order for security’, in circumstances where he found that Mr Jamil had no significant assets or income in any jurisdiction. The essence of the complaint is that to give this factor decisive weight involved ‘double-counting’, 33 [2026] SASC 88 at [26]. 34 [2026] SASC 88 at [26]. -- 12 of 16 -- [2026] SASCA 98 The Court 11 the lack of assets having already been brought to account. However, a judgment of this Court is enforceable interstate pursuant to the Service and Execution of Process Act 1992 (Cth). It followed, in Mr Jamil’s submission, that to give decisive weight to the absence of assets in this jurisdiction was erroneous. 35 The first point to note is that Livesey ACJ did not give the factor ‘decisive weight’. He gave it prominence in his consideration. Secondly, while Mr Jamil’s observation about the effect of the Service and Execution of Process Act is well enough made, it is to no real effect. The point of the prominence that Livesey ACJ gave to this consideration was that Mr Jamil has no assets within reach of the Medical Board that are capable of contributing to satisfaction of a costs order. The specification of a lack of assets within the jurisdiction as holding prominence in the dispositive part of the reasons did not involve ‘double-counting’ on the basis that Livesey ACJ had referred to the lack of assets earlier. It was nothing more than the placing of emphasis on the unavailability of assets. Proposed Ground 2 is without merit. 36 Proposed Ground 3 complains that having accepted a real prospect of stultification, Livesey ACJ erred in weighing ‘the apparent prospects of success on appeal’ against Mr Jamil, while expressly declining to rule on the competing merits contentions. The essence of this complaint is that it was not open to Livesey ACJ to both decline to determine the strength of the appeal and to give it adverse weight. 37 This complaint misconstrues the reasons. For the reasons explained in considering Proposed Ground 1, earlier, there was no inconsistency in Livesey ACJ declining to rule on the merits contentions and assessing the prospects as being not particularly strong and giving weight to that assessment. 38 Mr Jamil’s written submissions in support of this ground descend into detailed argument about the evidence supporting the proposition that the messages must have been deleted. It is not appropriate to engage with these submissions. It was open to Livesey ACJ to make an assessment of prospects based on the information that had been placed before him. He expressly acknowledged that he did not have the benefit of full argument. Proposed Ground 3 is based on a flawed understanding of the exercise that Livesey ACJ undertook. It has no prospects of success. 39 It is necessary to set out Proposed Ground 4 in its entirety: The learned Judge failed to take into account, or to engage with, substantial and clearly articulated submissions squarely raised in the Applicant’s written submissions of 20 July 2026, namely: Particulars (a) the staged alternative – security confined to costs to be incurred after the determination of permission to appeal (written submissions at [17], [44]) – which is not addressed in the reasons; -- 13 of 16 -- [2026] SASCA 98 The Court 12 (b) that the Applicant’s impecuniosity was caused by the loss of registration and income flowing from the very findings under challenge (written submissions at [14], [16], [20]); (c) that, the disciplinary proceedings having been commenced and pressed by the Second Respondent, the Applicant is in substance in the position of a defendant (written submissions at [16]). 40 Mr Jamil referred to the well-known passage in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs,35 where the High Court held that a failure on the part of the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts constituted a denial of natural justice.36 In that case, the Tribunal had failed to address a substantive basis for the appellant’s claimed fear of persecution. 41 The mere failure to refer to an argument does not necessarily amount to jurisdictional error. In Sean Investments Pty Ltd v MacKellar, Deane J explained that:37 … a party affected by a decision is [not] entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. 42 In any event, as Toohey J observed in Turner v Minister for Immigration and Ethnic Affairs:38 But the applicant does say that the Minister failed to take into account three relevant considerations, her previous good conduct, the fact that she was on parole and so subject to supervision and the fact that she was not the prime mover in the events that gave rise to her conviction. In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was. 43 The application for security was the Medical Board’s application. Particular (a) of Proposed Ground 4 references paragraphs 17 and 44 of Mr Jamil’s written submissions before Livesey ACJ. Paragraph 17 is directed to the quantum to be ordered, suggesting that if an order was to be made, the figure should be substantially lower. In the event, Livesey ACJ ordered security in the amount of $15,000, less than half that sought by the Medical Board. 35 (2003) 77 ALJR 1088. 36 Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ). 37 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, affirmed on appeal: (1982) 42 ALR 676. 38 (1981) 35 ALR 388 at 392. -- 14 of 16 -- [2026] SASCA 98 The Court 13 44 Paragraph 44 was a final, alternative submission incorporating a request that any order be confined to costs incurred after the determination of permission to appeal. This request was not substantively supported; it was just an alternative request in the event that security was to be ordered. Manifestly, Livesey ACJ did not accede to this. In circumstances where this was nothing more than a bare alternative submission at the conclusion of written submissions, Mr Jamil’s complaint about the failure to refer to it has the hallmarks of the mischief identified by Deane J in Sean Investments Pty Ltd v MacKellar.39 45 As to particular (b), it is true that Livesey ACJ did not refer to the fact that Mr Jamil’s impecuniosity is the result of his loss of registration and professional income. However, he did note that Mr Jamil’s:40 … anxiety about his loss of professional standing and inability to practise medicine is understandable. 46 Further, Livesey ACJ incorporated his earlier reasons for refusing expedition of the appeal, in which he recited the procedural history.41 That Mr Jamil’s impecuniosity was a result of his disqualification from practising was obvious. In context, the argument that Livesey ACJ did not take it into account is weak. 47 As to particular (c), Mr Jamil’s argument that he is, in substance, the defendant, is manifestly very weak. The relevant substantive proceedings were an application for judicial review that he instigated. He did so once he had exhausted his appeal rights. The argument that Livesey ACJ’s failure to refer to this submission constituted a denial of procedural fairness is weak. 48 In our view, the prospects of success on Proposed Ground 4 are very low. 49 Proposed Ground 5 complains that Livesey ACJ failed to take into account the public interest aspect of the proceeding, being an application to set aside determinations of a statutory tribunal procured by fraud. Mr Jamil certainly raised this in his written submissions. However, the public interest in fraud on a tribunal being exposed is commensurate with the prospects of success, which Livesey ACJ considered were not particularly strong. 50 In addition, the fraud that Mr Jamil asserts is a new legal characterisation of facts that he was already aware of (with the exception of the 2026 letter). At the original hearing, he squarely challenged the veracity of AB’s evidence and asserted that she had deliberately removed messages before taking screenshots that were provided to the investigation. The Tribunal rejected these assertions.42 In 39 (1981) 38 ALR 363. 40 [2026] SASCA 88 at [25]. 41 Jamil v South Australian Civil and Administrative Tribunal & Anor [2026] SASCA 75 at [7]-[18] (Livesey P), incorporated at [2026] SASCA 88 at [15]. 42 Medical Board of Australia v Jamil [2023] SACAT 104 at [86]. -- 15 of 16 -- [2026] SASCA 98 The Court 14 circumstances where Mr Jamil seeks to reargue these allegations within a different legal framework, the public interest in doing so is substantially reduced. 51 For the reasons given in respect of Proposed Ground 4, it does not follow, as Mr Jamil asserts, that the failure to mention the public interest in allowing an allegation of fraud to be aired meant that Livesey ACJ failed to consider it. Livesey ACJ was manifestly alive to the substance of Mr Jamil’s complaint. In our view, the prospects of success on Ground 5 are very low. 52 Proposed Ground 6 complains that on the facts as found by Livesey ACJ, the order for security was plainly unjust in that it was incapable of serving the protective purpose of the power. For the same reasons given in answer to Proposed Ground 1, this proposed ground has very low prospects of success. 53 It follows that we consider the prospect of success on the proposed appeal to be extremely low. We are not persuaded that the decision is of sufficient doubt to warrant reconsideration on appeal. 54 The third leave ground asserts that allowing the decision to stand would work a substantial injustice. This reflects the complaint in Proposed Ground 6, in that Mr Jamil submits that the order for security, while interlocutory, is final in practical effect, in that it terminates without adjudication an appeal not found to be hopeless and a fraud allegation that has not been determined on its merits. This fails to take into account the context in which the judicial review proceedings were commenced and in which the allegation of fraud is now raised. For the reasons given in respect of the assessment of the merits of Proposed Grounds 1 and 6, we are not persuaded that allowing the decision to stand would work a substantial injustice. 55 The application for leave to appeal against Orders 1, 2, 3 and 4 of 31 July 2026 (FDN 33 of CIV-26-007122) is dismissed. Consistently with the orders made on 12 August 2026 in CIV-26-007122 (FDN 40), which varied Order 3 of FDN 33 in that matter, if security is not paid into court on or before 4.00 pm on 1 September 2026, the appeal proceedings will be stayed and the listing of the hearing in December will be vacated. -- 16 of 16 --