Martynova v Brozalevskaia - [2023] NTSC 6

CITATION:Martynova v Brozalevskaia [2023] NTSC 6
PARTIES:MARTYNOVA, Marina Efimovna

v
BROZALEVSKAIA, Raisa

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-02203-SC
DELIVERED:  23 January 2023
HEARING DATE:  15 December 2022
JUDGMENT OF:  Huntingford A/AsJ

CATCHWORDS:
PRACTICE AND PROCEDURE – Application for security for costs – primary proceeding application for preliminary discovery – application under rules and inherent jurisdiction interlocutory in nature – meaning of proceeding – meaning of plaintiff and defendant - application by foreign resident – no assets in Australia – quantum – security ordered
Federal Court of Australia Act 1976 (Cth) s 56
Interpretation Act 1978 (NT) s 17
Supreme Court Act 1979 (NT) s 9
Supreme Court Rules 1987 (NT) O 32, 62
East Grace Corporation v Min Wei Xing (No 1) [2005] FCA 219
Mac-Attack Equipment Hire Pty Ltd v A J Lucas Operations Pty Ltd [2010] NTSC 27
Stratford Sun Limited v OM Holdings Limited [2009] FCA 1055
Taly NDC International NV v Terra Nova Insurance Co Ltd [1986] 1 All ER 69
REPRESENTATION:
Counsel:
Applicant:H Baddeley
Respondent:  M Grove
Solicitors:
Applicant:Clayton Utz
Respondent:  Ward Keller
Judgment category classification:    B
Judgment ID Number:  Hun2302
Number of pages:  23

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Martynova v Brozalevskaia [2023] NTSC 6
No. 2022-02203-SC

BETWEEN:

MARINA EFIMOVNA MARTYNOVA
Applicant

AND:

RAISA BROZALEVSKAIA
Respondent

CORAM: HUNTINGFORD A/AsJ
REASONS FOR JUDGMENT
(Delivered 23 January 2023)
Introduction

By summons filed 9 December 2022 the respondent[1] brings an application for security for costs in reliance upon r 62.02 of the Supreme Court Rules 1987 (NT) (SCR), and the inherent jurisdiction of the Court. The proceeding in relation to which the security is sought is the applicant’s originating motion seeking orders for preliminary discovery pursuant to r 32.05 of the SCR, which was filed on 31 August 2022.
The respondent relies upon the affidavits of James William Stuchbery made 1 December 2022 and Michael John McKillop Grove made 9 December 2022. The applicant relies on the affidavits of Mark Cameron Spain made 31 August 2022 and Tatyana Martynova made 9 December 2022.
Background
The following background facts appear from the affidavits.[2] The respondent is a resident of Darwin and an Australian citizen. She is the only daughter of Semen Yakovlevich Brozalevskiy (the deceased), who died in Russia on or about 24 February 2020, and Irina Brozalevskaia. The deceased and Irina Brozalevskaia divorced in about 1992.
The affidavit of Mark Spain annexes a marriage certificate, showing that the applicant and the deceased married in Moscow in 1997. It is common ground that the applicant and the deceased were not divorced when he died. However, there is a dispute between the parties as to whether the applicant and the deceased were living separately and apart at that time.
The deceased’s estate is said to include real estate in Russia and Dubai, together with 100% of the shares in a company, Rhombus Development Inc. (Rhombus), registered in Panama. Rhombus is said to have a bank account at the LGT Bank in Switzerland. There is no evidence that the deceased had assets in any Australian jurisdiction.
On about 3 February 2020, the deceased made a will in Russia. He left all of his assets, including his shares in Rhombus, to the respondent.
There are, or have been, various proceedings, including appeals, between the parties in Panama. Broadly, the proceedings brought by the applicant in Panama challenge the validity of the will and seek orders as to the applicable rules of succession and, ultimately, ownership of the Rhombus shares. A description and history of the Panamanian proceedings is set out in the affidavit of James Stuchbery, solicitor for the respondent.
There is no evidence from the applicant as to her assets. The affidavit of the applicant’s daughter, Tatyana Martynova, refers to the applicant having interests in real property in Russia and Dubai. There is also reference to an apartment in Brooklyn, New York, United States of America. However, the affidavit of Ms Martynova does not clearly state who owns the New York apartment. It is not disputed that the applicant has no assets in the Northern Territory, or in any Australian jurisdiction.
The applicant’s primary argument against an order for security is that the Court does not have the power to make the order sought due to the nature of the primary proceeding. The applicant further argues that an order for security should not be made on discretionary grounds.
Application of Order 62 to a proceeding seeking preliminary discovery
Rule 32.11 of the SCR relates to costs of applications for preliminary discovery. The rule states:
32.11Costs
(1)On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of a party to the proceeding, including the costs of making and serving an affidavit of documents, of producing a document for inspection in accordance with rule 32.09 or of complying with a direction given under rule 32.10.
(2)The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made.
The applicant submits that rule 62.02 cannot apply to an application for an order for preliminary discovery because of r 32.11(2). Her argument is that the specific provisions in r 32.11 require that security for costs is considered at the point where the Court has decided to make an order for preliminary discovery and is setting conditions. She submits that the fact that there is a specific provision in r 32.11 means that there is no room for the operation of Order 62.
Rule 32.11(2) is concerned with security for what are often called “compliance costs” on the making of an order for preliminary discovery. It refers to an applicant giving security for the “costs and expenses” of the person “against whom the order is made.”
The applicant’s interpretation of the interaction of r 32.11 with Order 62 would mean that an order for security in relation to a preliminary discovery application could not be made until after the application had been argued. An order at that stage can offer little comfort to a respondent who successfully resists a claim for preliminary discovery. Even if discovery is ordered contingent upon payment of the respondent’s costs of the application, an applicant could simply choose not to pursue the matter any further, leaving a respondent with few cost recovery options.
In my view r 32.11(2) does not limit, nor is it inconsistent with, Order 62. The two rules deal with different subjects. Order 62 is concerned with security for costs at the point where an application for an order is made, whereas r 32.11(2) is engaged after a decision has been made to grant an order for preliminary discovery, and is concerned with providing security for compliance costs.
The applicant further argued that r 62.02 could not apply because of the definitions of “plaintiff” and “defendant” in r 62.01. The applicant points out that r 62.02 refers to an application made by a defendant against a plaintiff whereas Order 32 uses the terminology “applicant” and “person” or, in the heading to r 32.05, “prospective defendant”, and in r 32.08 “respondent”.
In r 62.01 the term “plaintiff” is defined as “includes a person who makes a claim in a proceeding” and “defendant” as “includes a person against whom a claim is made in a proceeding”. The applicant argues that she is not making a claim in this proceeding and the respondent does not have a claim made against her and therefore this proceeding cannot come within the rule.
The terms plaintiff and defendant are defined in the Supreme Court Act 1979 (NT) as:[3]
defendant includes a person against whom relief is sought in a proceeding or whom is required to attend as a party to a proceeding.
plaintiff
includes a person seeking relief against another person by any form of proceeding in the Court.
The SCR is a statutory instrument as defined by the Interpretation Act 1978 (NT).[4] Section 20 of the Interpretation Act provides that words in a statutory instrument have the same “interpretation, application and effect” as in the parent Act.[5]
The Supreme Court Act defines “proceeding” as:[6]
Proceeding means a proceeding in the Court whether between parties or not, and includes:
(a)      a cause, action, suit or matter;
(b) an incidental proceeding in the course of, or in connection with, a cause, action, suit or matter;
(c)      a criminal proceeding, where the context so permits; and
(d)      an appeal.
I have no doubt that an application under r 32.05 is a proceeding for the purpose of the definition in the Supreme Court Act, and therefore for the definitions of plaintiff and defendant in r 62.01. It is commenced by originating process, as defined in r 1.09, in accordance with rr 4.01 and 4.05(c). Further, the words used, “cause, action, suit or matter” indicate a broad construction, encompassing any right, duty or liability which is subject to determination by the Court.[7]
The applicant’s argument relies upon the difference in wording between the definitions in the Supreme Court Act and those in r 62.01. She submits that the use of the word “claim” in the latter narrows the meaning to include only a claim which is a substantive cause of action. The definitions are directed to making it clear that any party who makes a claim in a proceeding, such as a defendant making a counterclaim, or joining a third party, may be required to give security.[8] The definitions serve to clarify that parties not called plaintiff or defendant are brought within the rule in those circumstances. The inclusion of the definition of “defence” indicates that this is the focus of these definitions. The definitions have nothing to say about the nature of the claim that a party makes.
There are three further points on construction. First, as noted above, definitions which are drafted using “includes” rather than “means” are generally interpreted as expansive rather than exhaustive.[9] That is, the definition will usually be regarded as expanding upon the usual meaning of the relevant word or phrase, rather than restricting it.
Second, the SCR contains numerous defined terms. It adopts a consistent style throughout and in my view the drafter has been careful to use “means” where a particular definition is intended to be exhaustive, and “includes” where it is not.[10] There is nothing about Order 62 which would lead to the conclusion that the drafter took a different approach there.
Finally, I am not convinced that the word “claim” has the narrow meaning the applicant proposes. The term is not defined for the purpose of the SCR. However, the ordinary meaning, according to the Macquarie Australian Dictionary includes “1. to demand by or as by virtue of a right; demand as a right or as due; 2. to assert, and demand the recognition of (a right, title, possession, etc.); assert one’s right to”.[11] It is difficult to see why an applicant’s claim to an entitlement to preliminary discovery under Order 32 could not come within that definition.
Therefore, in my view, the definitions in r 62.01 are complementary to, and do not attempt to limit, the definitions in the Supreme Court Act,
The applicant also relied upon the English case of Taly NDC International NV v Terra Nova Insurance Co Ltd.[12] Her counsel argued that this case is analogous and that it supports the argument that Order 62 is not intended to apply to an application for preliminary discovery.
In Taly, a plaintiff sued a defendant who in turn issued third party proceedings. The plaintiff brought an interlocutory application, seeking discovery and interrogatories against the third party. The third party applied for security for costs against the plaintiff. The application before the Court of Appeal was an appeal from a decision of the primary judge refusing the third party’s application for security for costs of the interlocutory application against the plaintiff.
The appeal failed on two grounds. First, the Court of Appeal held that the interlocutory application between the plaintiff and the third party was not a “proceeding” within the meaning of the rule. The Court said:
the proceedings referred to in the rule, if they are not an action, are at least proceedings of the nature of an action and refer to the whole matter and not to an interlocutory application in some other proceedings.[13]
The second reason was that the third party was not a defendant within the meaning of the rule, vis a vis the plaintiff. The third party proceeding was a separate proceeding, brought by the defendant, to which the plaintiff was not a party.[14] The plaintiff and the third party were therefore not in a plaintiff/defendant relationship; rather, the relevant “plaintiff” for the third party was the defendant(s) who had joined it.[15] That is not the situation in the present case.
As to the submission that Taly is authority for the proposition that security for costs cannot be ordered in relation to an interlocutory application, nowhere in the reported decision is there a reference to a definition of “proceeding” for the purpose of the relevant rules. It is unlikely that a relevant definition would not have been considered. As discussed above, “proceeding” as used in the SCR is a defined term, and is wide enough to include an application for preliminary discovery.
It is not controversial that an application for preliminary discovery is interlocutory in nature.[16] Nor that security for costs is not usually ordered against a party who is a defendant in a proceeding, just because they have brought an interlocutory application.[17] There are good policy reasons why that is so.[18]
However, the application under r 32.05 is the only proceeding between these parties in this Court. The applicant is seeking to enforce a right, under the SCR, to preliminary discovery. As is obvious from the nature of the application, there is no certainty that there will ever be any other proceeding between the parties. Therefore, although this proceeding is interlocutory, the parties are in a relationship of “plaintiff” and “defendant” for the purposes of Order 62.
The respondent referred to Federal Court decisions in which security for costs has been ordered under s 56 of the Federal Court of Australia Act 1976 (Cth), in relation to applications for preliminary discovery. In Stratford Sun Limited v OM Holdings Limited,[19] Siopis J noted that both parties accepted that the court had the power to make the order. In East Grace Corporation v Min Wei Xing (No 1),[20] French J specifically found that “the essential criteria for the grant of security under s 56 are established.” His Honour went on to say that the nature of the application, must be borne in mind when considering the application for security.[21] However, s 56 of the Federal Court of Australia Act is in very broad terms, referring to “an applicant in a proceeding”, and therefore has limited relevance to Order 62.[22]
In so far as the applicant’s counsel argued that the application should be regarded as analogous to a subpoena, and therefore an order for security is inappropriate, that argument does not take the matter any further. A subpoena is a court order requiring the attendance of, usually, a non-party to give evidence or produce documents in an existing proceeding. It is an entirely different procedure to an application under r 32.05.
For those reasons, I reject the applicant’s submission that there is no power to order security for costs in this proceeding based upon Order 62 of the SCR.
The inherent jurisdiction
The respondent relies, in the alternative, upon the inherent jurisdiction of the Court. There is no doubt that this Court can order security for costs in its inherent jurisdiction.[23] The jurisdiction is an adjunct to the power of superior courts to regulate their own procedure and is co-extensive with Order 62 of the SCR. The inherent jurisdiction also provides a source of power to order security in circumstances which do not fall within r 62.02.[24] Therefore, even if I am wrong in my above conclusion that this application falls within Order 62, the inherent jurisdiction provides a source of power to order security for costs of an application for preliminary discovery.
Basis of the application: Order 62
Consideration of an application for security for costs has been described as a two-stage process; consisting of identifying jurisdiction, followed by consideration of the circumstances of the case which indicate whether the discretion should be exercised.[25] Rule 62.02 is in the following terms:
62.02When to give security
(1)   Where:
(a)     the plaintiff is ordinarily resident out of the Territory;
(b)    the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues not for his own benefit but for the benefit of another person and there is reason to believe that the plaintiff has insufficient assets in the Territory to pay the costs of the defendant if ordered to do so;
(c)     a proceeding by the plaintiff in another court for the same claim is pending;
(d)    subject to subrule (2), the address of the plaintiff is not stated or is not stated correctly in his originating process;
(e)     the plaintiff has changed his address after the commencement of the proceeding in order to avoid the consequences of the proceeding; or
(f) under an Act or the Corporations Act 2001 the Court may require security for costs,
the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against the defendant be stayed until the security is given.
(2)The Court shall not require a plaintiff to give security by reason only of sub-rule (1)(d) if in failing to state his address or to state his correct address the plaintiff acted innocently and without intention to deceive.
The respondent relies upon sub-rules 62.02(1)(a) and (d). It is common ground that the applicant is ordinarily resident outside the Northern Territory and therefore r 62.02(1)(a) is engaged.
The applicant states her address in the originating process as care of her solicitors. She has not filed any affidavit or other material which discloses her current address. In written submissions counsel for the applicant argued that the applicant’s address was known, based upon paragraph [5(e)(iii)] of the affidavit of Mr Stuchbery, solicitor for the respondent, who deposes that the respondent told him that after the applicant and her father separated, in 2011, the applicant went to live at a particular address in New York. That is not evidence of the applicant’s current address. It refers to events over a decade ago. I further note that the reference at paragraph [24] of Ms Martynova’s affidavit is also in the past tense.
In any event, it appears that, at best, the New York apartment is not the ordinary residence of the applicant, but a place where she may sometimes stay. The equivocal statements in Ms Martynova’s affidavit do not fit with the clear statement at paragraph [3] of the affidavit of Mark Spain that the applicant “lives in Russia”.
On the balance of probabilities, I therefore find that the respondent is ordinarily resident in Russia. The applicant has not provided her address and there is no explanation for that failure. The applicant has provided no evidence upon which I could make a finding of the kind referred to in r 62.02(2), which I think is for her to do. Therefore I find that r 62.02(1)(d) is also enlivened.
I turn now to consider the relevant discretionary factors, which are the same whether the source of power is the SCR or the inherent jurisdiction.
Delay

The applicant submits that the respondent is guilty of extraordinary delay in making the application. The procedural history is that the application for preliminary discovery was made on 31 August 2022 and there was then a lengthy delay, of around ten weeks, while the respondent prepared her answering material. The respondent says that the additional time, eight weeks on the original order and then a further two weeks extension by consent, was necessary because the applicant did not set out any of the material relating to the Panamanian proceedings in her application.
The applicant submits that she is prejudiced by the delay because there is a relevant time limit which expires on 24 February 2023. That time limit is said to arise from the operation of Russian law which requires proceedings to recover a “spouse’s share” of an estate which has been transferred to someone else be brought within three years. It was not explained how that Russian limitation is relevant to any potential proceeding in the Northern Territory.
The application for security for costs was filed on 9 December 2022 and was argued on 15 December 2022. In the circumstances, the need for the respondent to do considerable work in preparation of the response provides some explanation for the delay, however, it was well known to the respondent from the start that the applicant was not in Australia and unlikely to have any assets here. The fact that the parties are already in dispute in Panama is also relevant. It seems to me that the amount of work to be done would have suggested an application for security at an early time, rather than waiting until the response was prepared.
However, I also note that delay is only one factor to be considered, and is not an automatic bar to an order.[26]
Strength of the applicant’s case
The applicant submits that she has a good case on the merits. She points to the relatively low threshold for orders for preliminary discovery and states that the volume of documents sought is relatively modest. The respondent argues that the issues in this preliminary discovery application are more complicated than is usual in a matter of this type due to the factual background, involving solely foreign assets and the relevance of Panamanian and Russian law.
This is an unusual matter, which may involve consideration of difficult questions involving foreign law. However, it is inappropriate to embark upon any detailed assessment of the merits of the primary application. I consider that the plaintiff has an arguable case, and that her application is therefore bona fide. However, it is not certain that she will succeed. There are arguments on both sides. Overall, the strength of the case is a neutral factor.
I also note that it is possible that, even if the applicant is successful, she will be ordered to pay the respondent’s costs of the application. Costs do not always follow the event in applications for preliminary discovery.[27]
True position of the applicant in the proceeding
Where proceedings can be described as “defensive”, in that on the facts the respondent is the real “aggressor” in an action, security will not usually be ordered.[28] The applicant submitted that the application was brought “solely as a consequence of the wrongful acts of the respondent”. The wrongful acts referred to are understood to be the transfer of the Rhombus shares. However, the applicant is in no different position to any party who believes that they may have a cause of action against another person. The respondent claims to be entitled to the shares under her father’s will. There is a dispute between the parties, as evidenced by the Panamanian proceedings. That alone does not make the respondent the “true plaintiff” for the purpose of this application.
Even if I had taken the view that the applicant had brought this proceeding solely in response to the respondent’s “self-help” in transferring the Rhombus shares to herself, this is only one factor to weigh among many. In the circumstances of this case, including that there are already proceedings in Panama in relation to the same subject matter, this factor would not have affected the outcome.
Ordinary residence of the applicant
The applicant’s counsel submits that she owns property in New York which could be a source of funds in the event that a costs order is made in the respondent’s favour. I do not consider that the evidence supports that submission. The affidavit of Ms Martynova is unclear as to ownership of the New York Property, and the applicant has chosen not to give any evidence as to her financial position. There is no evidence about the nature of the asserted title, for example leasehold or freehold, communal or strata, whether the property is mortgaged or otherwise encumbered, or whether it is owned jointly with another person. Nor is there any evidence about the cost, process, or difficulty of enforcing a Northern Territory order in New York.
It is not suggested that the applicant is impecunious. The affidavit of Ms Martynova gives details of property which the deceased owned in Dubai and in relation to which the applicant was receiving rents to her United States bank account in 2017. There is no other reference to this bank account, and it is unknown whether the applicant still owns it or whether it has any funds. There is also no evidence about what has happened to the ownership of the Dubai property since the deceased passed away.
Ms Martynova also gives evidence about property which the deceased and the applicant owned in Moscow. She says that this is a commercial property and that the applicant’s Russian taxation records show that she owns a 5/8 share. There is no evidence as to the co-owner(s) or the nature of the ownership.
There is no evidence about how difficult it would be to enforce a Northern Territory order in Russia, or Dubai, or the costs involved. However, it is unlikely to be either straightforward, or cheap, in either place.
The purpose of an order for security when the plaintiff is ordinarily resident outside the jurisdiction is to ensure that a respondent who is awarded costs will have a fund available against which it is possible to enforce, so as to reduce the risks involved in attempting enforcement in a foreign country.[29] Although an order for security will not always be made where a plaintiff is a foreign resident with no assets in the jurisdiction, it is an important circumstance weighing in favour of an order.[30]
Conclusion on security for costs
In exercising the discretion, all relevant circumstances must be weighed, both as to their own cogency, and their impact on other circumstances. Having carefully considered the relevant discretionary factors, I am of the view that the applicant should be ordered to provide security for the respondent’s costs.
Amount of security
The principles relevant to fixing an amount of security for costs were set out by Luppino AsJ in Mac-Attack Equipment Hire Pty Ltd v A J Lucas Operations Pty Ltd.[31] Those relevant to this case are:
1. The court is to determine an adequate amount for security having regard to the nature of the claim;
2. An adequate amount is one that is neither illusory nor oppressive; and
3. It is appropriate to factor in contingencies such as the possibility that the action will settle at some stage.
As French J said in East Grace Corporation, the ordering of security, and fixing quantum is a risk management exercise, having regard to the legitimate interests of the parties, and fixing quantum is not an exact science.[32]
The affidavit of Michael Grove states that the respondent’s costs to that date are $24,985 for solicitors’ fees and $22,000 for counsel. He further estimates costs of $17,556 for solicitors and $89,750 for counsel to complete the matter.[33] Mr Grove states that the estimate has been prepared on the basis of “party/party” (or standard basis) costs in accordance with Order 63 of the SCR.
It is appropriate to consider the respondent’s delay in making the application when assessing quantum. In this context, delay is relevant to costs already incurred. While the discretion of the Court is unfettered, the respondent’s unexplained delay in bringing the application must also be considered in the circumstance that this is an interlocutory application for preliminary discovery; a proceeding which is usually disposed of relatively quickly. In the circumstances I consider that it would not be fair to the applicant to include costs incurred before 9 December 2022 in estimating quantum.
The applicant submits that the estimate of costs is excessive. I agree that it is a very large amount for a preliminary discovery application, even allowing for the considerable complexity and the need to obtain evidence and advice from Panama. The applicant did not give any estimate of anticipated costs to the completion of the matter and so the only evidence is that of Mr Grove. The estimate of future costs on Mr Grove’s evidence was $104,950. It is appropriate to add a notional amount of 10% for GST.
At the senior solicitor rate of $380 per hour, the estimate of solicitor’s fees allows for over 46 hours of solicitor’s time. I note the engagement of counsel, that considerable work, including the affidavit in response, is complete, and that the hearing will likely take place relatively soon. In relation to counsel’s fees, a total of $42,750 for two counsel to draft submissions, together with a further $23,500 to consider the applicant’s submissions and prepare for hearing is very large, even noting that this is more complex than a run of the mill preliminary discovery application. While some allowance for counsel is reasonable, given the issues, I do not consider that any allowance should be made for senior counsel.
Although the estimate is said to be based on “party/party” costs, no discount has been allowed for the fact that the taxing officer might make significant reductions on a range of grounds, including that the amounts estimated for counsel appear to be considerably in excess of the counsel fees guidelines. Nor has there been any reduction for other contingencies including that facts are agreed and issues narrowed, or the proceeding settles, although the chance of the latter seems remote.[34] I also note that the hearing is estimated at two days, however with written submissions, it may be completed in one day.
The quantum of costs should represent a reasonable proportion of the likely total costs at risk. In this case, taking into account the factors I have already mentioned, and acknowledging that no more than a broad-brush approach is possible at this stage, I consider that the quantum of the security order should be significantly less than the amount estimated. If the allowances for amounts before 9 December 20221 and those for senior counsel are removed the estimate is approximately $55,000 including GST. Reducing that amount by a further one third for contingencies, leaves an amount of approximately $36,000.
I therefore propose to order that the applicant give security for costs in the sum of $36,000. I will hear the parties as to the form of the security and the appropriate orders.
-------------------

[1] The originating process and subsequent documents in this proceeding refer to the applicant as “plaintiff” and the respondent as “defendant” however rr 32.05 and 32.08(1) use the terms “applicant” and “respondent”.

[2] Some of these matters may be contested, or not admitted, in the Panamanian proceedings.

[3] Supreme Court Act 1979 (NT) s 9(1) (‘SCA’).

[4] Interpretation Act 1978 (NT) s 17 (definitions).

[5] Hudson v Branir Pty Ltd (2005) 148 NTR 1, 7 [30]–[33] (Martin CJ).

[6] SCA (n 3).

[7]The High Court has considered the definition of “matter” in the context of constitutional proceedings. In Abebe v The Commonwealth of Australia (1999) 197 CLR 510, [25] (Gleeson CJ and McHugh J) their Honours said “A ‘matter’ is therefore ordinarily concerned with ‘some immediate right, duty or liability to be established by the determination of the Court.’”

[8] Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol, 1 (at Service 250) 5562 [62.01.10].

[9]Dennis Pearce, Statutory Interpretation in Australia (LexisNexis, 9^th ed, 2019) 265-266.

[10]For example see rr 1.1, 1.09, 5.01, 7.01(2) and 7A.01

[11]Macquarie Australian Dictionary (8^th ed, 2020) ‘claim’ (def 1-2).

[12] [1986] 1 All ER 69 (‘Taly’).

[13]Ibid 71.

[14] G E Dal Pont, Law of Costs (LexisNexis Butterworths, 4^th ed, 2018) 1017-1018 [28.60].

[15]In relation to a defendant seeking security against a plaintiff in a third party proceeding, and the changes in the English rules since Taly see I Minh Holdings Pty Ltd v Chuang (2021) 65 VR 184; [2021] VSC 760.

[16] Williams (n 8) 3930.19 [35.05.30].

[17]Ibid 5564 [62.01.25]; Stanley-Hill v Kool [1982] 1 NSWLR 460 (‘Stanley-Hill’) (defendant ordered to give security for costs of producing a witness they required for cross-examination). Noting this appears to have been an exercise of the inherent jurisdiction of the Court.

[18]Taly (n 12) 71; Williams (n 8) [62.01.25]; but see also Stanley-Hill (n 17) 464 (Reynolds JA).

[19] [2009] FCA 1055[4].

[20] [2005] FCA 219 [2] (‘East Grace Corporation’).

[21] Ibid [3].

[22] Federal Court of Australia Act 1976 (Cth) s 56. Note that the Full Court of the Federal Court has commented that the exercise of the discretion under s 56 is governed by the same considerations as the inherent jurisdiction: Commissioner of Taxation (Cth) v Vasiliades (2016) 344 ALR 558, [70] (Kenny and Edelman JJ) (‘Vasiliades’).

[23] Iskander v Merparti Nusantara Airlines [2006] NTCA 3 [11] (Mildren J); Lines v Tana Pty Ltd, [1987] VR 641, 642-643 (Crockett, O’Brien and Tadgell JJ).

[24] Stuart v Said [2021] VSCA 226, [5] – [6] (Maxwell P and MclLeish JA).

[25] Gwalwa Daraniki Association Inc v Chin (No 2) [2018] NTSC 24, [5].

[26] Anchung Pty Ltd v Northern Territory of Australia [2015] NTSC 76, [26].

[27] See discussion as to costs of an application and the ‘adversarial approach’ in Guest v Guest (No 2) [2016] VSC 76, [16]–[19].

[28] LexisNexis, Practice and Procedure, High Court and Federal Court of Australia, vol 4 (at Service 297) [35,250.5].

[29] Vasiliades (n 22) [72] and quoting Energy Drilling Inc V Petroz NL (1989) ATPR 40-954, 50,422.

[30]PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321, 323; discussed in Yara Australia Pty Ltd v Oswal (2013) 41 VR 245, 268 (Priest JA).

[31] [2010] NTSC 27, [12] (‘Mac-Attack’).

[32] East Grace Corporation (n 20) [5], [7].

[33] All amounts are exclusive of GST.

[34] Mac-Attack (n 31) [21].