Ninan v St George Bank Ltd

The case of Ninan v St George Bank Ltd involved proceedings initiated by the applicants against various respondents, including St George Bank, seeking damages and other relief on the basis of alleged illegal activities. The applicants' claims were extensive, seeking damages amounting to a significant percentage of the respondents' estimated illegal gains from 2000 to 2012. The respondents, in turn, sought security for costs, arguing that the applicants' claims were without merit and that the applicants were impecunious and ordinarily resident outside Australia, making enforcement of any potential judgment difficult. The primary issue before the court was whether the security for costs orders made earlier should be varied in light of the applicants' failure to comply with those orders and their subsequent dismissal of the proceedings.

The court considered whether there had been a material change in circumstances since the security for costs was ordered, or whether new evidence had come to light that could not reasonably have been adduced earlier. The applicants argued that the new Federal Court Rules, which came into effect on 1 August 2011, should alter the approach to varying security for costs orders. However, the court found that there had been no material change in circumstances since the original security for costs order, and no new evidence had been presented. The applicants' impecuniosity, their residency outside Australia, the deficiencies in the pleadings, and the lack of admissible material suggesting matters of public interest remained unchanged. The court declined to vary the security for costs orders, finding that the applicants had not demonstrated any basis to warrant such a variation.

In conclusion, the court upheld the original security for costs orders, finding no material change in circumstances or new evidence that would justify a variation. The court emphasised that such orders should not be varied lightly, particularly after a contested hearing. The applicants' failure to comply with the security for costs orders led to the dismissal of their proceedings, and the court found no error in the primary judge's refusal to vary those orders. The applicants' arguments regarding the new Federal Court Rules were rejected, as there was no indication that these rules altered the criteria for varying security for costs orders.