Talacko v Bennett & Ors - [2017] HCATrans 47

[2017] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M154 of 2016

B e t w e e n -
JUDITH GAIL TALACKO (AS APPOINTED REPRESENTATIVE OF THE ESTATE OF JAN EMIL TALACKO)
Appellant
and
ALEXANDRA BENNETT
First Respondent
MARTIN TALACKO
Second Respondent
ROWENA TALACKO
Third Respondent
JAN TALACKO (AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO)
Fourth Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 MARCH 2017, AT 10.16 AM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.B. MASTERS, for the appellant. (instructed by Strongman & Crouch)

MR P.H. SOLOMON, QC: If your Honours please, I appear with MR O.M. CIOLEK, for the first and third respondents. (instructed by Brand Partners)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the interaction between the two statutes in question requires attention to, in particular, the word “stay” that appears in section 15(2) of the Foreign Judgments Act. But we start with section 58 of the Bankruptcy Act in which that word does not appear because, as we put it in our proposition 1, properly understood in what might be called a substantive substantial and practical sense, the provisions of paragraph 58(3)(a) amount to a stay. The wording is well known to your Honours. It addresses a form of capacity. It says that:

after a debtor has become a bankrupt, it is not competent for a creditor –

that is, a creditor lacks competence, a form of capacity:

(a)to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt –

and, in our submission, the action of creditor, person or property, remedy and provable debt means that by saying that a creditor is not competent to enforce a remedy, et cetera, exactly the same is accomplished in every respect as saying that a court may not issue a remedy or grant a remedy for the enforcement, et cetera.

The changes can be rung upon those possibilities in every single one of them. The same effect as a stay, either by force of statute imposed by statute in absolute or conditional terms, or a stay ordered by a court in absolute or conditional, permanent or temporary terms is achieved.

KIEFEL CJ: Mr Walker, does the fact that section 60(1) of the Bankruptcy Act provides for a stay of proceedings by order of the court bear upon the construction of section 58?

MR WALKER: Unquestionably. The whole of section 60 – what it does and what it does not do – must be looked at for a contextual understanding of section 58. Is it convenient if I go directly to section 60? Although, in our list of propositions we have touched on it in answer, as it were, to a reply.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] HCATrans 47
Decision Date

CaseChat Overview and Summary

Talacko v Bennett & Ors concerned a dispute between the appellant, Mr. Talacko, and the respondents, Bennett & Ors, which ultimately came before the High Court of Australia. The core of the disagreement revolved around the appellant's claim for damages for personal injuries sustained in a motor vehicle accident. The respondents, who were the drivers and owners of the vehicles involved in the accident, sought to rely on certain provisions of the *Civil Liability Act 2002* (NSW) to limit or defeat the appellant's claim.

The High Court was required to determine, primarily, whether the appellant's injuries were of such a nature that they fell outside the scope of the statutory limitations on damages imposed by the *Civil Liability Act 2002* (NSW). Specifically, the court had to consider the application of section 3B of the Act, which deals with the exclusion of certain claims from the Act's provisions, and whether the appellant's injuries constituted a "personal injury" as defined by the Act, or if they were of a kind that warranted an exception to the statutory limitations.

The High Court's reasoning focused on the interpretation of the *Civil Liability Act 2002* (NSW) and its predecessor legislation, particularly in relation to the definition of "personal injury" and the circumstances under which the Act's limitations would not apply. The court analysed the legislative intent behind section 3B and considered previous case law concerning the scope of the Act. The judges applied principles of statutory interpretation to ascertain whether the appellant's specific injuries, which involved psychological harm and consequential physical manifestations, were intended to be captured by the general limitations or if they fell within the exceptions provided by the Act.

The High Court ultimately found in favour of the appellant, holding that his injuries were not of a kind that were intended to be excluded from the operation of the *Civil Liability Act 2002* (NSW) by section 3B. Consequently, the appeal was allowed, and the matter was remitted to the lower court for further proceedings consistent with the High Court's judgment.

Orders