Nadeem v Bindaree Food Group Pty Ltd

The appeal concerned an order for security for costs made by the District Court of New South Wales against the plaintiff, Mr Nadeem, in a negligence claim for personal injury sustained while employed by Bindaree Food Group Pty Ltd. Mr Nadeem, who was ordinarily resident in Fiji, sought leave to appeal against the District Court's order that he provide security for the defendant's costs. The appeal was directed by the Chief Justice pursuant to s 46A(2) of the Supreme Court Act 1970 (NSW).

The primary legal issue before the Court of Appeal was whether the discretion of the primary judge miscarried in ordering security for costs against the plaintiff, and whether there was a substantial risk of injustice to the plaintiff if the Court did not intervene. Specifically, the Court was required to consider whether the primary judge had adequately factored into their assessment the ease with which judgments of the District Court could be enforced in Fiji, and whether this consideration should influence the quantum of the security ordered.

The Court of Appeal allowed the appeal, reasoning that the primary judge had failed to adequately consider the practicalities and differential costs of enforcing a judgment in Fiji when assessing the quantum of security for costs. The Court held that while impecuniosity of the plaintiff is a relevant factor, the ease or difficulty of enforcing a judgment in the plaintiff's country of ordinary residence should be a material consideration in determining whether security should be ordered and, if so, in what amount. Consequently, the Court set aside the original order for security for costs and, in lieu thereof, ordered the plaintiff to provide security in the amount of $7,500. The Court also made no order as to the costs of the leave application or the appeal.