Talacko v Jan Talacko as Executor of the Estate of Helena Marie Talacko & Ors; Talacko v Bennett & Ors; Talacko v Jan Talacko as Executor of the Estate of Helena Marie Talacko

[2020] HCATrans 175

[2020] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M8 of 2019

B e t w e e n -

JUDITH GAIL TALACKO

Applicant

and

JAN TALACKO AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO

First Respondent

ALEXANDRA BENNETT

Second Respondent

MARTIN TALACKO

Third Respondent

ROWENA TALACKO

Fourth Respondent

ALEXANDRA BENNETT AND DAVID ADAMS AS EXECUTORS OF THE ESTATE OF MARGARET HELEN TALACKO

Fifth Respondents

JAN EMIL TALACKO

Sixth Respondent

DAVID TALACKO

Seventh Respondent

PAUL ANTHONY TALACKO

Eighth Respondent

STATE TRUSTEES LTD

Ninth Respondent

Office of the Registry
  Melbourne  No M9 of 2019

B e t w e e n -

JUDITH GAIL TALACKO

Applicant

and

ALEXANDRA ANN BENNETT

First Respondent

MARTIN THORBURN JAN TALACKO

Second Respondent

ROWENA KIRSTEN EVE TALACKO

Third Respondent

ALEXANDRA ANN BENNETT AND DAVID ADAMS AS EXECUTORS OF THE ESTATE OF MARGARET HELENA TALACKO

Fourth Respondents

JAN TALACKO AS EXECUTOR OF THE ESATE OF HELENA MARIE TALACKO

Fifth Respondent

ESTATE OF JAN EMIL TALACKO (DECEASED) (AN UNDISCHARGED BANKRUPT)

Sixth Respondent

DAVID TALACKO

Seventh Respondent

PAUL ANTHONY TALACKO

Eighth Respondent

PETER ANDREW NOEL TALACKO

Ninth Respondent

AMANDA MAREE FISCHER

Tenth Respondent

STATE TRUSTEES LTD (ACN 064 593 148)

Eleventh Respondent

Office of the Registry
  Melbourne  No M10 of 2019

B e t w e e n -

JUDITH GAIL TALACKO

Applicant

and

JAN TALACKO AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO

First Respondent

ALEXANDRA ANN BENNETT

Second Respondent

MARTIN THORBURN JAN TALACKO

Third Respondent

ROWENA KIRSTEN EVE TALACKO

Fourth Respondent

ALEXANDRA ANN BENNETT AND DAVID ADAMS AS EXECUTORS OF THE ESTATE OF MARGARET HELENA TALACKO

Fifth Respondents

ESTATE OF JAN EMIL TALACKO (DECEASED) (AN UNDISCHARGED BANKRUPT)

Sixth Respondent

DAVID TALACKO

Seventh Respondent

PAUL ANTHONY TALACKO

Eighth Respondent

PETER ANDREW NOEL TALACKO

Ninth Respondent

AMANDA MAREE FISCHER

Tenth Respondent

STATE TRUSTEE LTD (ACN 064 593 148)

Eleventh Respondent

Directions hearing

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 22 OCTOBER 2020, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR J.B. MASTERS:   Your Honour, I appear for the applicant in each of the three proceedings.  (instructed by Strongman & Crouch)

MR B. PATRICK:   If the Court pleases, I appear with for the first respondent in M8 and M10, and the fifth respondent in M9 for my client, Jan Talacko as Executor for the Estate of Helena Talacko.  (instructed by Patrick & Associates)

MR O.M. CIOLEK:   If the Court please, I appear for the second to fifth respondents in the first‑called matter and the corresponding parties in the other matters.  (instructed by Brand Partners)

HIS HONOUR:   Thank you.  Mr Masters, what is the position with the special leave application?

MR MASTERS:   Yes, I am instructed to seek three orders. Firstly, your Honour may have noted – I understand it was only sent to your Honour this morning – we, of course, only sent it to the Court quite late last evening, so we seek an order that compliance with the time limited by rule 41.02.1 be dispensed with, and that is noted in the application. My client seeks that special leave to be granted in that application and then my client seeks an order that the new proceeding – and, of course, a proceeding number has not yet been allocated to that application, but that that proceeding be consolidated with the others.

Your Honour will hopefully have seen that the parties are agreed that the three extant proceedings should be consolidated.  The consent orders and the joint note that was sent by the parties to the Court during the week, of course, did not address sufficiently the Court of Appeal’s quantum judgment from earlier this year, and the Court yesterday drew the parties’ attention to the principle in Wishart v Fraser and R v Marks and, as I apprehend the principle referred to in those authorities, our client should indeed – perhaps counterintuitively, from my client’s perspective, because the judgment fell in her favour - that she should apply for special leave to appeal from the Court of Appeal’s quantum judgment.

Now, Mr Patrick has informed me this morning that his client consents to the three orders I have just referred to.  I will leave Mr Ciolek to address your Honour in relation to his clients’ position.  We do apologise, of course, for the oversight.  We had not uncovered the principle referred to in those authorities and we thank the Court for drawing the parties’ attention to that principle, your Honour.

HIS HONOUR:   Thank you, Mr Masters.  Mr Patrick, do you wish to say anything?

MR PATRICK:   No, your Honour.  We appreciate the procedural need for these orders and, on that basis, consent to the application.

HIS HONOUR:   Yes, thank you.  Mr Ciolek.

MR CIOLEK:   Your Honour, my clients also consent to the orders that Mr Masters indicated are sought were the application accepted for filing.  But may I assist the Court in this way.  I might suggest that further orders be made dispensing with compliance with the requirements of Part 41 of the Rules.  Clearly, no response to the special leave application would need to be filed and the like.

More importantly, your Honour, it occurred to me this morning in reviewing the papers that while the Court of Appeal granted leave to appeal on 30 April and dismissed the appeal on that day, the court did not dispose of the appeal in its entirety on that day and made further orders on 5 May 2020 in respect of the costs of that appeal.  If it were necessary to have the entirety of the record brought up to this Court, then I simply draw your Honour’s attention to that order made on 5 May 2020.

HIS HONOUR:   Thank you for that.  Is there anything further you wish to say?

MR CIOLEK:   No, your Honour.

HIS HONOUR:   Mr Masters, your proposed application for special leave to appeal should then be amended, should it not, to encompass the orders of 5 May 2020?

MR MASTERS:   Yes.  I think that is right, your Honour.  Your Honour has not seen those orders and I apologise for that – as your Honour would expect the costs order was in my client’s favour but we will obviously turn our mind to how – I mean that costs order will be part of the appeal and I suppose the question of the costs of that appeal would need to be dealt with in the orders ultimately made by this Court if appropriate.

HIS HONOUR:   We do not want any more loose ends, Mr Masters.

MR MASTERS:   Yes, indeed.  Yes, thank you, your Honour.

HIS HONOUR:   Can you tell me, Mr Masters, has the application for special leave to appeal been filed at this stage?

MR MASTERS:   It has not been filed with the Registry, no, your Honour.

HIS HONOUR:   All right.  Mr Ciolek, I do not think we need any dispensation with Part 41 of the Rules in circumstances where I will be granting special leave to appeal instanter. 

MR CIOLEK:   If the Court please.

HIS HONOUR:   The orders I propose to make are as follows – I will read them out and you can tell me whether there is anything wrong with them, gentlemen:

1.Grant leave to file the application for special leave to appeal from the whole of the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and pronounced on 30 April 2020 and 5 May 2020 in proceeding S APCI 2019 0012 in Court.

2.Dispense with compliance with the time limited by rule 41.02.1 of the High Court Rules 2004 (Cth) for the filing of that application.

3.Order that the application be determined instanter.

4.Grant special leave to appeal.

5.Order that the appeal be consolidated with proceeding M10/2019.

Does that cover everything?

MR MASTERS:   Yes, it does.  Thank you, your Honour.  One point I perhaps should note, just in relation to the costs order that Mr Ciolek has raised this morning, and looking at the new application for special leave to appeal, in paragraph 2(b) my client proposes to seek orders that the appeal is allowed and that the orders of the Court of Appeal pronounced on 30 April 2020 are set aside.  Consistently with what has been discussed and, again, counterintuitively from my client’s perspective, I suppose that should also refer to the 5 May orders, but my client would also be seeking a costs order in relation to that Court of Appeal proceeding.

HIS HONOUR:   I will let you tidy that up as you wish in your notice of appeal.

MR MASTERS:   Yes, thank you, your Honour.

HIS HONOUR:   Which will be a consolidated notice of appeal, of course.

MR MASTERS:   Yes, indeed, yes.  Again, just to be clear – sorry, your Honour – that will be dealt with in the notice of appeal.  What I was raising now is whether the application for special leave to appeal should also be revised to refer to the 5 May order in paragraph 2(b).

HIS HONOUR:   If you wish to make that amendment at this stage I will certainly allow you to do that.

MR MASTERS:   Thank you, your Honour.

HIS HONOUR:   I will take that as given, and if there are no further comments I will make the orders that I have just indicated.  I will not read them out again.

MR MASTERS:   As the Court pleases.

HIS HONOUR:   All right.  Is there anything else?

MR MASTERS:   Not from me, your Honour.

MR PATRICK:   Nothing further from me, your Honour.

MR CIOLEK:   Nothing further from me, your Honour.  Thank you very much.

HIS HONOUR:   Very well.  Thank you very much for your attendance by video.  The Court will now adjourn.

AT 9.40 AM THE MATTERS WERE ADJOURNED