Talacko v Talacko

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 1998 07393

JAN TALACKO (as Executor of the Estate of Helena Marie Talacko) & Ors (according to the Schedule attached)	Plaintiffs
v
JAN EMIL TALACKO	Defendant

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2017
DATE OF JUDGMENT:	22 December 2017
CASE MAY BE CITED AS:	Talacko & Ors v Talacko
MEDIUM NEUTRAL CITATION:	[2017] VSC 804

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COSTS — Applications for costs of summonses before Associate Judge and notices of appeal from decision of Associate Judge — Where nature of proceeding changed and alleged grounds of error did not fall for determination — Held: no order as to costs.

COSTS — Duplication of representation — Where two parties sought to represent the deceased estate of a party — Where parties made complementary submissions — Whether double representation necessary — Held: unsuccessful applicant to bear own costs.

COSTS — Applications for relief upon alleged contraventions of Civil Procedure Act 2010 — Identification of costs thrown away — Where the issue of an amended certificate of finality by the Prothonotary rendered extant appeals futile — Where legal practitioners failed to inform the Court of the issue of the amended certificate in a timely manner — Where the change in the nature of the proceeding enabled the Court to hear and determine the real issues in dispute — Held: costs incurred in preparing for appeals only partially thrown away.

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APPEARANCES:	Counsel	Solicitors
For Ms Judith Gail Talacko (Applicant)	Mr M D Wyles QC and Mr J B Masters	Strongman & Crouch
For Mr David Jellicoe Findlay/ Ms S Findlay and Ms J Rigg (as executors of the Estate of Mr David Jellicoe Findlay) (Applicant)	Mr J Guss	Joseph Guss
For the 1^st Plaintiff (Respondent)	Mr B Patrick	Grindal & Patrick
For the 2^nd – 5^th Plaintiffs (Respondents)	Mr O M Ciolek	Brand Partners
For Tolhurst, Druce & Emmerson (Respondents)	Mr R Heath	K & L Gates
For Mr Stephen Howells (Respondent)	Mr T J Scotter	DLA Piper
The Prothonotary of the Supreme Court of Victoria	--	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The Court’s discretion as to costs.................................................................................................... 2

Summary of procedural background to notices of appeal and summonses.......................... 3

The process (as agreed between the parties) to be adopted once the appeals were rendered futile.................................................................................................................................................... 6
Further summonses were issued in relation to the third certificate............................... 8
TDE proffered an apology in advance of the costs hearing........................................... 10
The hearing on 12 September 2017..................................................................................... 10
Mr Howells proffered an apology after the costs hearing.............................................. 13

Identification of the costs that were ‘thrown away’ (re the second certificate) or occasioned by late disclosure (of the third certificate)................................................................................................. 14

Costs that were ‘thrown away’ by the issue of the second certificate........................... 15
Costs occasioned by late disclosure of the third certificate............................................ 17

Issues as to costs in relation to the 8 May 2015 summonses..................................................... 25

Ms Talacko is entitled to her costs in relation to the 8 May 2015 summons................ 26
The 2^nd – 5^th plaintiffs seek a set-off and stay of enforcement of any costs order made in favour of Ms Talacko............................................................................................................................. 26
Mr Findlay is not entitled to his costs in relation to the 8 May 2015 summons.......... 29

Issues as to costs in relation to the summonses and notices of appeal filed by Ms Talacko (on 16 December 2014 and 18 February 2015) and by Mr Findlay (on 8 December 2014 and 25 February 2015) respectively........................................................................................................................................ 33

Orders sought by the 2^nd – 5^th plaintiffs............................................................................. 37
Orders sought by Ms Talacko............................................................................................. 39
Orders sought by Mr Findlay............................................................................................. 39
Conclusion as to costs in relation to the summonses and notices of appeal............... 40

Issues as to costs in relation to summonses filed by Ms Talacko (dated 23 September 2015) and Mr Findlay (dated 21 September 2015) concerning the third certificate................................ 41

Orders sought by Ms Talacko............................................................................................. 42
Orders sought by Mr Findlay............................................................................................. 43
Dr Jan Talacko’s submissions in response........................................................................ 43
Conclusion............................................................................................................................. 45

Orders sought by Ms Findlay and Ms Rigg pursuant to rules 9.06 and/or 9.09 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that they be added as parties, or substituted for Mr Findlay for the purposes of seeking costs orders...................................................................................... 45

The submissions filed on behalf of the Prothonotary.............................................................. 53

Summary of conclusions................................................................................................................. 53

HER HONOUR:

Introduction

Pursuant to orders made by this Court on 4 February 2016, and following the determination of an appeal to the High Court of Australia,[1] this matter returned to Court for the determination of the following issues:
[1]Talacko v Bennett (2017) 91 ALJR 564; [2017] HCA 15.

A Concerning the ‘first certificate’ and the ‘second certificate’ issued by the Prothonotary:

(1) issues as to costs in relation to summonses dated 8 May 2015, filed by Ms Judith Gail Talacko (‘Ms Talacko’) and the late Mr David Jellicoe Findlay (‘Mr Findlay’) respectively;

(2) issues as to costs in relation to notices of appeal filed on 18 February 2015 by Ms Talacko and on 25 February 2015 by Mr Findlay respectively;

(3) a summons dated 25 January 2016, filed by Ms Talacko, seeking relief against each of Stephen John Howells, barrister, and Tolhurst Druce & Emmerson, solicitors, in relation to alleged contraventions of the Civil Procedure Act 2010 (Vic).

B Concerning the ‘third certificate’ issued by the Prothonotary:

(1) issues as to costs in relation to a summons dated 23 September 2015 filed by Ms Talacko and a summons dated 21 September 2015 filed by Mr Findlay; and

(2) a summons dated 29 January 2016, filed by Ms Talacko, seeking relief against Mr Howells in relation to alleged contraventions of the Civil Procedure Act 2010 (Vic).

As a separate matter, by summons dated 11 August 2017, Ms Sasha Nedelka Findlay and Ms Susan Josephine Rigg, as executors of the estate of David Jellicoe Findlay, deceased,[2] pursuant to Grant of Probate dated 19 June 2017, seek orders pursuant to rules 9.06 and/or 9.09 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that they be added as parties, or substituted for Mr Findlay, in order to represent his estate for the purposes of pursuing the relief by way of costs sought in the summonses filed by him in respect of the ’first certificate’ and the ‘second certificate’ and in respect of the ‘third certificate’ respectively. In ordinary circumstances, this summons would have been heard by an Associate Justice in advance of the hearing of issues as to costs, but in the interests of efficiency and with a view to minimising costs, it was made returnable at the same time as the other summonses.
[2]Mr Findlay passed away on 5 March 2017.

Before turning to consider the issues as to costs raised by the respective parties, it is convenient to say something about the Court’s broad discretion to award costs.

The Court’s discretion as to costs

Under s 24(1) of the Supreme Court Act 1986 (Vic) the Court has full power to determine by whom and to what extent the costs are to be paid. A court's discretion as to costs is, as Dawson J explained in Latoudis v Casey, ‘absolute and unfettered’ and one that is to be ‘exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading to the litigation.’[3]
[3]Latoudis v Casey (1990) 170 CLR 534 at 557.

Furthermore, in their respective judgments in Latoudis v Casey, Mason CJ and Toohey J each pointed out that costs are not awarded by way of punishment, expressly or impliedly, of the unsuccessful party.[4] Rather, as Mason CJ said:

They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott (1981) 53 FLR, at p 111.[5]

[4]Ibid, at 543 and 563 respectively.

[5]Ibid, at 543.

The Court’s power and discretion must also be exercised subject to and in accordance with any relevant rules of Court or other legislation. In that regard, Part 2.4 of the Civil Procedure Act outlines the sanctions which may be imposed on a participant in litigation as a result of a contravention by that litigant of the overarching obligations. Relevantly, where a contravention is made out, s 29 empowers the Court to make any orders it considers appropriate in the interests of justice, as follows:

29 Court may make certain orders
(1)If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to—
(a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;
. . .
(f)any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

(2)An order under this section may be made—
(a)on the application of—
(i)any party to the civil proceeding; or
(ii)any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or

(b)on the court’s own motion.

(3)This section does not limit any other power of a court to make any order, including any order as to costs.

Summary of procedural background to notices of appeal and summonses

The background to the notices of appeal and the various summonses seeking relief in respect of the three certificates is set out at some length in the Court’s reasons delivered on 12 November 2015.[6] In summary, the position is as follows.
[6]Talacko & Ors v Talacko (2015) 305 FLR 353; [2015] VSC 624.

On 4 February 2015, Daly AsJ delivered a ruling and made orders in respect of a ‘Certificate of Finality of Judgments and Orders’ dated 4 July 2012 (the ‘first certificate’) which had been made by the Prothonotary of this Court purportedly pursuant to the power conferred by Chapter II, Order 11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) and s 15 of the Foreign Judgments Act 1991 (Cth). Her Honour dismissed the applications made by each of Ms Talacko and Mr Findlay to set aside the first certificate and ordered that there be liberty to apply with respect to the costs of the applications. Thus far, no orders as to costs have been made.

Notices of appeal against the ruling and orders made by Daly AsJ were filed by Ms Talacko on 18 February 2015 and by Mr Findlay on 25 February 2015. However, in the period between Daly AsJ making orders and the notices of appeal being filed, Tolhurst Druce & Emmerson (‘TDE’), the solicitors for the 2^nd to 5^th plaintiffs, made contact with the Prothonotary, without informing the solicitors for Ms Talacko or the solicitors for Mr Findlay, and arranged for the issue of an ‘Amended Certificate of Finality of Judgment and Orders’, dated 23 February 2015 (the ‘second certificate’). The heading of the second certificate states that ‘[t]his certificate is an amendment and replaces in its entirety’ the first certificate issued by the Prothonotary. Belatedly, by letter dated 1 April 2015, TDE wrote to the solicitors for each of Ms Talacko and Mr Findlay informing them that the Prothonotary had issued the second certificate, and enclosing a copy of it.

The notices of appeal were listed for hearing in May 2015.[7] On Friday 24 April 2015, the Court sent an email to the solicitors for the parties, outlining a timetable for the provision of their respective written outlines of submissions and requesting that the parties consult and agree upon a common book of authorities and other materials to be filed by 12 noon on Thursday 7 May 2015.
[7]The appeals were initially listed for hearing on 6 May 2015. However, at the request of the 2^nd to 5^th plaintiffs, the date was altered to 11 May 2015 by consent of the other parties so as to accommodate the unavailability of their counsel, Mr Howells.

By letter dated 4 May 2015, the solicitors for the 2^nd to 5^th plaintiffs wrote to the solicitors for the respective applicants to inform them that because ‘Judith Talacko has entirely recast the basis upon which she opposes and challenges the making of the Certificates dated 4 July 2012 and 23 February 2015’ they were seeking advice from senior counsel and would likely need to file a further affidavit from the Czech Republic to respond to this new case. In that event, they said, ‘there is no prospect that these steps will be completed in sufficient time to permit the appeal to be heard on 11 May 2015.’[8] Each of the solicitors for the respective applicants responded to the effect that they opposed any adjournment of the hearing of the appeals, primarily on the basis that it was not apparent why any further affidavit from the Czech Republic would be relevant. By letter dated 5 May 2015, the solicitor for the 2^nd to 5^th plaintiffs wrote to the Court, copied to the applicants, and requested that the matter be listed for mention in order that they might make an application for the adjournment of the hearing of the appeals to a date on or after 15 June 2015. The adjournment was said to be necessary ‘to supplement the material in the Appeal Book in order to respond to the claim that the Prothonotary could not issue the Certificates.’ Further the solicitor for the 2^nd to 5^th plaintiffs stated that a further affidavit needed to be obtained from their Czech lawyer, Mr Josef Hlavicka, in order to respond to the new case advanced by Mrs Talacko, and ‘[i]n particular the affidavit will address how the Certificate dated 4 July 2012 has been used in the Czech Republic.’[9]
[8]See exhibit ‘JGJ-11’ to the affidavit of Mr Joseph sworn on 5 May 2015.
[9]See exhibit ‘JGJ-15’ to the affidavit of Mr Joseph sworn on 5 May 2015.

The matter was listed for mention on 7 May 2015 so as to facilitate the 2^nd to 5^th plaintiffs making their foreshadowed application for an adjournment of the hearing of the appeals. Each of the applicants opposed the grant of any adjournment. At the mention hearing, the applicants accepted that because the second certificate had ‘entirely replaced’ the first certificate that was the subject of Daly AsJ’s ruling, the first certificate no longer had any operative force or effect.[10] Accordingly, it was clear that their appeals had been rendered futile because there was no longer in existence anything for which the representative orders[11] were sought. However, the applicants said that now that a second certificate had been issued, purportedly to replace the first, they wished to challenge its contents and validity on the grounds set out in their respective written submissions.
[10]See Transcript 07/05/15, at p 9 (line 5).
[11]That is, the orders whereby each of Ms Talacko and Mr Findlay sought to be appointed by the Court as the representative of the estate of the late Jan Emil Talacko.

At the conclusion of argument on 7 May 2015, the Court indicated that it did not propose to grant any adjournment. The Court was satisfied, however, that whilst the appeals had effectively been rendered futile, there nevertheless remained a real issue in dispute between the parties concerning the validity and content of the certificates. In those circumstances, the Court said it proposed to adjourn the mention hearing to the next day in order to give the parties and their legal advisers an opportunity to consult with a view to devising a fresh procedure that would be capable of being regarded under the Civil Procedure Act2010 (Vic) as an efficient and fair means for enabling the Court to proceed to hear the essential issue in dispute between them, on the dates in May that had been set aside.

The process (as agreed between the parties) to be adopted once the appeals were rendered futile

The parties responded by preparing and providing a joint memorandum to the Court setting out the process (as agreed between them) to be adopted in respect of the appeals brought by Mr Findlay and Ms Talacko in the proceeding.[12] The agreed process was as follows:
[12]Mr Masters, junior counsel for Ms Talacko, sent an email to the Court (and copied to all parties) dated 8 May 2015, enclosing the joint memorandum. At the mention hearing on 8 May 2015, Dr Sharpe confirmed that she consented to the making of the fresh applications in the form proposed.

1.At the hearing listed for 10.30 am on 8 May 2015, Mr Findlay and Mrs Talacko file fresh summonses in the attached form (the Summonses).
2.The Summonses be made returnable at 10.30 am on 11 May 2015.
3.At the hearing on 11 May 2015, the Court hear the applications brought by the Summonses.
4.At the hearing on 11 May 2015, the parties make submissions in relation to both the procedural aspects of the applications (that is, paragraphs 1 and 2 of the Summonses) and the substantive aspects of the applications (that is, paragraphs 3 to 10 of the Summonses). This will obviate the need for a further hearing concerning the substantive aspects in the event that either Mr Findlay or Mrs Talacko is appointed to represent the estate of Jan Emil Talacko as sought in paragraph 2 of the Summonses.
5.The Court determine the procedural aspects of the applications (that is, paragraph 1 of the Summonses and, if applicable, paragraph 2 of the Summonses) on the basis of the submissions to be made at the hearing on 11 May 2015.
6.In the event that either Mr Findlay or Mrs Talacko is appointed to represent the estate of Jan Emil Talacko as sought in paragraph 2 of the Summonses, the Court determine the substantive aspects of the relevant application (that is, paragraphs 3 to 10 of the relevant summons) on the basis of the submissions having been made at the hearing on 11 May 2015.

On 8 May 2015, orders were made dismissing the 2^nd to 5^th plaintiffs’ application for an adjournment, and providing for Ms Talacko and Mr Findlay respectively to issue fresh summonses directed to the Prothonotary and to the 2^nd to 5^th plaintiffs, and for their applications to be heard on 11 May 2015.[13] In addition, each of the 2^nd to 5^th plaintiffs, by their counsel, gave a fresh undertaking to the Court, in similar terms to an undertaking that had been given by them before Daly AsJ, that they would not take any further step, whether by themselves or by their servants or agents, to enforce the judgment of Kyrou J dated 11 December 2009 or otherwise seek to use or rely upon the first certificate or the second certificate until the determination of the summonses dated 8 May 2015 or further order.[14]
[13]A copy of these summonses was also to be provided to the 1^stplaintiff, Dr Jan Talacko, who did not appear at the hearing on 8 May 2015.
[14]The terms in which this undertaking was expressed were enlarged by consent on 22 September 2015, once the parties became aware of the existence of the third certificate.

By the procedural expedient of each applicant filing a fresh summons, the Court was placed in a position whereby it could proceed to hear and determine all of the issues raised by the parties in respect of both the first and second certificates, and not just those in respect of the first certificate that had been raised by the notices of appeal, and freed of the strictures of a proceeding by way of appeal, in particular the threshold requirement that error be found before the Court could proceed to entertain the merits.

The Court proceeded to hear the fresh summonses on 11, 12 and 13 May 2015. The 1^stplaintiff, Dr Jan Talacko, did not appear at the hearing. Nor did the Prothonotary, the Victorian Government Solicitor’s Office having informed the Court and all parties to the effect that the Prothonotary did not intend to take an active role and would abide by the decision of the Court.[15]
[15]See exhibit ‘JGJ-10’ to the affidavit of Mr Joseph sworn on 5 May 2015.

Further summonses were issued in relation to the third certificate

A few months after the hearing, but before judgment was delivered, a further summons was issued by Ms Talacko dated 26 August 2015, seeking to restrain the 1^stplaintiff, Dr Jan Talacko, from enforcing the judgment of Kyrou J dated 11 December 2009 or otherwise seeking to use or rely upon the first certificate or the second certificate until the 8 May 2015 summonses have been determined. At a hearing held on 3 September 2015 in respect of the 26 August 2015 summons, it became apparent that a further certificate, entitled ‘Certificate of Finality of Judgments and Orders’ dated 4 June 2013 (the ‘third certificate’), which was framed in essentially the same terms as the first certificate, had been issued by the Prothonotary at the request of the 1^stplaintiff. This discovery led to further summonses being issued by each of Ms Talacko and Mr Findlay respectively, seeking relief in respect of the third certificate along similar lines to that sought in respect of the first and second certificates. Orders were made on 22 September 2015 adjourning each of those summonses to a date to be fixed at or following the delivery of judgment in respect of the other applications.

On 12 November 2015, the Court delivered its reasons for decision, finding that each of the first and second certificates was invalid, primarily because at the time when the application for the first certificate was made, the judgment debtor, Mr Jan Emil Talacko,[16] was bankrupt and s 58(3) of the Bankruptcy Act 1966 (Cth) operated so as to impose a stay of execution of a judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth).[17] On that day, the Court made orders that Ms Talacko (rather than Mr Findlay) be appointed nunc pro tunc from 8 May 2015, to represent the estate of the first defendant, the late Jan Emil Talacko, pursuant to Rule 16.03(1) of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), for the purposes of conducting an application for the orders set out in her summons dated 8 May 2015.
[16]Mr Jan Emil Talacko passed away on 3 November 2014. As he died intestate, having revoked all earlier wills, this gave rise to the applications made by each of Ms Talacko (his wife) and Mr Findlay (his solicitor and friend of many years) to be appointed by the Court to represent his estate for the purposes of seeking declaratory relief in relation to the certificates.
[17]Talacko & Ors v Talacko (2015) 305 FLR 353; [2015] VSC 624. See also Talacko v Bennett (2017) 91 ALJR 564; [2017] HCA 15.

Following the delivery of the reasons for decision in respect of the first and second certificates, each of the parties acknowledged that those reasons have application in the context of the third certificate also, and that relief similar to that ordered in respect of the first and second certificates would also be available in respect of the third certificate. Accordingly, when the matter was listed for the making of final orders on 4 February 2016, orders were made declaring each of the first and second certificates invalid, and separate orders were made declaring the third certificate invalid.

In advance of the substantive orders being made, Ms Talacko had filed and served a summons dated 25 January 2016 seeking relief against each of Mr Howells and TDE in relation to alleged contraventions of the Civil Procedure Act concerning the first and second certificates, and a summons dated 29 January 2016, seeking relief against Mr Howells in relation to alleged contraventions of the Act concerning the third certificate. Accordingly, in addition to the substantive orders made on 4 February 2016, orders were made by consent to the effect that the applications for costs made by Ms Talacko (including those sought under her Civil Procedure Act summonses) and Mr Findlay respectively be adjourned and made returnable for determination by the Court following the expiration of the period for any application for leave (and subsequent appeal).

The issues as to costs and alleged contraventions of the Civil Procedure Act 2010 (Vic) were listed for hearing on 12 September 2017. In advance of the hearing, each of the parties and other interested persons filed the affidavit material upon which they relied and any further or updated outline of submissions, and replies to the submissions of the other parties. The affidavit material filed on behalf of Ms Talacko, the successful applicant,[18] indicated that she had reached agreements with some of the parties and interested persons, subject to the Court sanctioning those arrangements, but that there were other aspects that would require determination by the Court.
[18]Ms Talacko had succeeded in both her procedural application to be appointed as the representative of her husband’s estate for the purposes of challenging the certificates, and in her substantive application that each of the first and second certificates be declared invalid. She also succeeded in having the third certificate declared invalid.

TDE proffered an apology in advance of the costs hearing

In the case of the proposed agreement that Ms Talacko had reached with TDE concerning her Civil Procedure Act summons in respect of the first and second certificates, the material filed on behalf of TDE made clear that TDE, as solicitors for the 2^nd – 5^th plaintiffs, acknowledged and accepted that in failing to disclose to the other parties and the Court that they had applied for and been issued with the second certificate, they had contravened ss 21 (overarching obligation not to mislead or deceive) and 26 (overarching obligation to disclose existence of documents) of the Civil Procedure Act and were willing to pay (agreed) sums to Ms Talacko by way of compensation and for her costs of the summons.[19] TDE also formally apologised to the Court and to the parties. As at the date of the costs hearing, no similar position applied in the case of Mr Howells, the lead barrister for the 2^nd – 5^th plaintiffs.
[19]TDE and Ms Talacko submitted to the Court a minute of proposed consent order under which TDE would be required to pay to Ms Talacko, amongst other things, compensation fixed in the sum of $62,500 ‘in respect of all of Mrs Talacko’s costs of the Appeal [being her notice of appeal filed on 18 February 2015] thrown away by reason of [TDE’s contravening conduct]’. Ms Talacko acknowledged that if that proposed order were made, any amount she receives from TDE in settlement of her claims against them would need to be taken into account in the assessment of any costs order that is made against the 2^nd – 5^th plaintiffs in respect of her costs of the appeal brought by the notice of appeal filed on 18 February 2015. (See Reply submissions of Judith Gail Talacko (to the submissions of the 2^nd – 5^th plaintiffs) , at fn 12) During the hearing as to costs, Senior Counsel for Ms Talacko accepted that under her Civil Procedure Act summons she was only entitled to receive an order pursuant to s 29 for the payment of costs that were ‘wasted’, and was not contending that TDE was unable to resile from the sum of $62,500 that had earlier been agreed.

The hearing on 12 September 2017

The hearing commenced on 12 September 2017 with oral submissions made on behalf of Ms Talacko. Ms Talacko claimed that subject to the outcome of her Civil Procedure Act summons, the Court should order that the 2^nd – 5^th plaintiffs pay her costs of the 8 May 2015 summons. In respect of her notice of appeal, again subject to the outcome of her Civil Procedure Act summons, she also sought orders that the 2^nd – 5^th plaintiffs pay her legal costs and disbursements. Ms Talacko noted that with the issue of the second certificate, the appeals had effectively been rendered futile, and she submitted that had she been informed in a timely way that the second certificate had been applied for, she would not have filed her notice of appeal and incurred costs in relation to it.

Mr Wyles QC appeared with Mr Masters for Ms Talacko. At the outset of his submissions, he focussed on the relief that Ms Talacko sought against Mr Howells and TDE under her Civil Procedure Act summonses. He was particularly critical of the conduct of Mr Howells in seeking the first certificate, and of TDE for its delay in disclosing events concerning the second certificate, and he submitted that ‘so much court time and expense has been incurred’ as a result.[20] He submitted that rather than seeking a certificate from the Prothonotary under the Foreign Judgments Act 1991 (Cth), the preferable and more expedient course for the legal representatives of the 2^nd – 5^th plaintiffs to have adopted would have been to seek declaratory relief as to whether the Prothonotary had power to issue a certificate in circumstances where the judgment debtor was bankrupt.
[20]Transcript 12/09/17, at 23 (Mr Wyles QC).

The Court responded by observing that the decision of the High Court in Talacko v Bennett has now made clear what the effect of s 58(3) of the Bankruptcy Act is, but hitherto there were divergent views about its operation and effect. The Court also indicated that given the decision reached by the Court of Appeal in the present case, it was difficult to see how Ms Talacko could sustain an argument that in making the application for the first certificate, Mr Howells had breached his obligations under the Civil Procedure Act.

Further, the Court noted, that in the present case, once it was clear that the appeals of Ms Talacko and Mr Findlay had been rendered futile by the grant of the second certificate, the parties did effectively proceed in the manner Mr Wyles contended for, by agreeing to seek declaratory relief to resolve the issue. Thus, it is likely that the costs and expenses that were incurred in respect of the hearing of the 8 May 2015 procedural summonses are similar or of the same order as the costs and expenses that would have been incurred had declaratory relief been sought at the outset. In those circumstances, the Court said the real task facing Ms Talacko and the Court was to identify what (if any) costs had actually been ‘wasted’ as a result of the conduct of either or both of TDE and Mr Howells, so that the Court might deal with them separately from the costs of the hearing conducted in May 2015.

In that respect, the Court noted that the present case is quite unusual, in the sense that were it not for the conduct of TDE and/or Mr Howells in procuring the issue of the second certificate and in failing to disclose its existence to Ms Talacko and Mr Findlay in a timely way, the Court would have been confined to the issues raised in the notices of appeal and would have been required to find error in Daly AsJ’s reasoning before it could intervene. That is to say, given the arguments that were raised before Daly AsJ, it was unlikely that the notice of appeal procedure would have enabled the parties to agitate (what were later identified as) the real issues in dispute between them.

Thus, while it is clear that the conduct on the part of TDE and/or Mr Howells was conduct that should not have occurred, nevertheless it operated to put an end to the appeals and provided both the impetus and the opportunity for the parties to consult and work together to fashion a procedural mechanism that would enable the Court to determine the real issues in dispute between them, within the original timeframe that had been ordered for the hearing of the appeals. The parties did so, and their collaboration led to the (agreed) initiation of the fresh procedural summonses by Ms Talacko and Mr Findlay on 8 May 2015, which the Court then proceeded to hear and determine, but using the (common) Appeal Book and outlines of submissions that had been filed in the appeals. Some supplementation was required by way of further affidavit material, but for the most part, it seemed that little, if any, of the costs involved in preparation for the appeals was wasted.

In my view, following the disclosure of the events concerning the issue of the second certificate, the conduct of the respective parties and their legal representatives in seeking to get the matter ‘back on the rails’ reflected and accorded with what is required to be done by each of them under the Civil Procedure Act. The hearing of the summonses proceeded in an efficient manner. Further, even though Ms Talacko and Mr Findlay were separately represented throughout, the presentation of their respective submissions was undertaken in a complementary manner, and without repetition, and diverged only at the last hurdle when they were addressing the question of who should be appointed as the representative of the estate.

Against that background, at the hearing on 12 September 2017 the Court gave leave to Ms Talacko to identify the categories of costs and disbursements that she contended were thrown away:

(a) by reason of the late disclosure by TDE and/or Mr Howells of the existence of the application for the second certificate, and of the second certificate; and

(b) by reason of the late disclosure by Mr Howells of the existence of the third certificate.

As Mr Findlay had also claimed costs both as a result of his appeal being rendered futile by the issue of the second certificate and the late disclosure of the third certificate, the Court invited his solicitor, Mr Guss, to undertake a similar exercise.

Mr Howells proffered an apology after the costs hearing

Immediately following the hearing, the solicitors for Mr Howells sought and obtained further instructions in relation to the second and third certificates. On 13 September 2017, counsel for Mr Howells filed a further submission on his behalf, which stated:

2. In respect of the Second Certificate, Mr Howells:
(a) did not, as he accepts he should have done:
(i)in the period between 6 February 2015 and 2 April 2015 cause to be disclosed to the other parties in the proceeding the existence of the application for the Second Certificate;
(ii)after the hearing of the Appeal was allocated to Justice Sloss, ensure that the existence of the application was disclosed to Her Honour (Through Her Honour’s staff or otherwise);
(iii)in the period between 23 February 2015 and 2 April 2015, ensure that the Second Certificate was disclosed to Justice Sloss and each party;

(b)apologises for the failings above.

3.In the event that any costs have been thrown away as a result of the failures in the previous paragraph, he is prepared to pay or contribute to those costs (for the avoidance of doubt, like TDE he does not accept that the sum of $74,463.26 contained in the lump sum costs assessment (CWC 1 to the first Corns affidavit or the sum of $62,500 in previous offers and correspondence is a proper measure of any costs thrown away).
4.In respect of the Third Certificate, Mr Howells:
(a)did not, as he accepts he should have done:
(i)disclose or cause to be disclosed the existence of the Third Certificate, prior to it being disclosed by Dr Talacko on 3 September 2015;
(ii)disclose the existence of the Third Certificate to Justice Sloss in the hearing on 3 September 2015, when he appeared;
(iii)seek to discuss the matter with Dr Talacko on 3 September 2015 in an effort to cause the earlier disclosure of the Third Certificate;

(b)apologises for the failings above.

5.In the event that any costs have been thrown away as a result of the failures in the previous paragraph, he is prepared to pay or contribute to those costs.

Identification of the costs that were ‘thrown away’ (re the second certificate) or occasioned by late disclosure (of the third certificate)

On 26 September 2017, the solicitors for Ms Talacko filed two memoranda, the first one addressing what she alleged were the costs thrown away in respect of the second certificate, and the other addressing the costs allegedly occasioned by the late disclosure of the third certificate. In a joint memorandum filed on behalf of TDE and Mr Howells, the solicitors for TDE and the solicitors for Mr Howells responded jointly to Ms Talacko’s memorandum regarding the costs allegedly thrown away in respect of the second certificate, and the solicitors for Mr Howells responded to Ms Talacko’s memorandum regarding the costs allegedly thrown away in respect of the third certificate. On 2 October 2017, the solicitors for Ms Talacko filed a reply to the joint memorandum and an affidavit of Mr Joseph in support of her position. Regrettably, the parties were unable to reach agreement about those matters, and so it is necessary for the Court to determine them.

Costs that were ‘thrown away’ by the issue of the second certificate

Ms Talacko submits that the following costs and disbursements incurred by her were ‘thrown away’ by reason of the late disclosure by TDE and Mr Howells of the application for, and issue of, the second certificate:

(a) notice of appeal and accompanying documents, and related attendances;

(b) affidavit of Jonathan Guy Joseph sworn on 5 May 2015 (except the section headed ‘The Amended Prothonotary’s Certificate’) and related attendances;

(c) affidavit of Jonathan Guy Joseph sworn on 7 May 2015 (except the section headed ‘Common book of authorities and other materials’) and related attendances;

(d) hearing of the 2^nd to 5^th plaintiffs’ application to adjourn the appeal on 7 May 2015, and related attendances; and

(e) hearing on 8 May 2015 to regularise the conduct of the proceeding, and related attendances.

As Ms Talacko contends that the costs associated with each of these items of work have been ‘thrown away’, she seeks to recover those costs on an indemnity basis.

A joint response was filed on behalf of TDE and Mr Howells, in which they took issue with each of the items claimed. In some instances they referred to the quantum of the costing for those items of work (as prepared by a costs consultant) that had been set out in earlier communications between them, and took issue with the amount sought to be recovered. In my view, the previous costing information is not relevant to this exercise. The present task is one of identifying the work that was undertaken by Ms Talacko that was rendered otiose or was thrown away by their failure to disclose the application for, and the issue of, the second certificate.

In my view, it is clear that if TDE and/or Mr Howells had informed Ms Talacko and Mr Findlay in a timely way that they were seeking to have the Prothonotary issue a second certificate, that would in terms amend the first certificate and replace it, the notices of appeal would not have been filed. To be sure, the revelation of the information concerning the second certificate would likely have provoked or set in train some other action on the part of Ms Talacko and Mr Findlay in seeking to have the matter return before the Court, but it would not have involved the filing of notices of appeal. It follows that if the notices of appeal had not been filed, the procedural timetable for the steps leading to the hearing of the appeals would not have been fixed by the Court. In that event, there would have been no need for the 2^nd – 5^th plaintiffs to make application for an adjournment, so no hearing would have been required on 7 May 2015, and it would not have been necessary for the hearing before the Court on 8 May 2015 to deal with the procedural mechanism proposed by the parties to get the matter ‘back on the rails’ to enable the real issues in dispute to be heard. Accordingly, Ms Talacko is entitled to recover the costs of preparing the specified portions of Mr Guy’s affidavits of 5 May 2015 and 7 May 2015, the hearing on 7 May 2015 and the hearing on 8 May 2015 referred to in paragraphs (b), (c) (d) and (e) above on an indemnity basis.

As noted during the course of the hearing on 12 September 2017, some of the work undertaken for the appeals was capable of being used (and was used) in relation to the hearing of the 8 May 2015 summonses, in the sense that the (common) Appeal Book and the submissions filed on behalf of the parties were used at the substantive hearing. While the notices of appeal bore some relevance to the content of the 8 May 2015 summonses, it was necessary for fresh procedural documents to be prepared to initiate the process, and some care was required to be taken to ensure that they captured correctly the issues to be determined by the Court. In my view, as a practical matter, the costs and disbursements involved in the preparation of the notices of appeal were effectively wasted. Accordingly, Ms Talacko is entitled to recover the costs of preparing the notice of appeal and associated matters referred to in paragraph (a) above on an indemnity basis.

In the absence of the parties reaching agreement as to quantum for each of those items, the quantification exercise is a matter for the Costs Court.

Costs occasioned by late disclosure of the third certificate

Ms Talacko submits that the following costs and disbursements incurred by her were occasioned by reason of the late disclosure by Mr Howells of the existence of the third certificate:

(a) preparation of and filing the summons issued by Ms Talacko on 26 August 2015 (‘the 26 August 2015 summons’), and related attendances;

(b) preparation of the affidavit of Jonathan Guy Joseph sworn on 28 August 2015, and related attendances;

(c) hearing on 3 September 2015 on the return of the 26 August 2015 summons, and related attendances;

(d) preparation of the affidavit of Jonathan Guy Joseph sworn on 15 September 2015, and related attendances;

(e) preparation of and filing the summons issued by Ms Talacko on 21 September 2015 (‘the 21 September 2015 summons’), and related attendances;

(f) preparation of the affidavit of Jonathan Guy Joseph sworn on 21 September 2015, and related attendances;

(g) hearing on 22 September 2015 on the return of the 21 September 2015 summons, and related attendances;

(h) preparation of and filing the summons issued by Ms Talacko on 23 September 2015 (‘the 23 September 2015 summons’), and related attendances.

In her memorandum, Ms Talacko explained that by her 21 September 2015 summons she sought leave to file and serve, in a form annexed, an amended version of her 8 May 2015 summons, seeking by way of additional relief an order declaring the third certificate invalid. By this point, however, the Court had heard argument on (but not determined) the 8 May 2015 summons. At the hearing on 22 September 2015, the Court did not grant Ms Talacko leave to file and serve an amended version of her 8 May 2015 summons, but rather ordered that she be at liberty to issue a fresh summons in substantially the same form as the (counterpart) summons that had been filed by Mr Findlay on 21 September 2015. Accordingly, in her fresh summons filed on 23 September 2015, Ms Talacko sought, among other things, an order declaring the third certificate invalid. Ms Talacko contends that all of the costs and disbursements incurred by her in respect of both the 21 September 2015 summons and the 23 September 2015 summons, together with all of the costs and disbursements incurred by her in respect of the 26 August 2015 summons, were occasioned by the late disclosure of the existence of the third certificate. In other words, she submits it may be inferred that if Mr Howells had disclosed the existence of the third certificate prior to 8 May 2015, none of those costs would have been incurred.

Here also the response of Mr Howells has been to dispute each of these items, and to note generally that ‘[n]o costs have been provided in respect of the amounts claimed in the third certificate.’[21]
[21]Joint response memorandum dated 27 September 2017, at [6].

The third certificate became an issue in the context of the relief that had been sought in the 8 May 2015 summonses because hitherto the Court was unaware that the 1^stplaintiff had sought and obtained a certificate from the Prothonotary that was expressed in terms similar to the first certificate. By way of background, the first certificate was sought and obtained by the 2^nd – 5^th plaintiffs for use in proceedings in the Czech Republic, but the 2^nd – 5^th plaintiffs gave an undertaking to the Court during the hearing before Daly AsJ that they would not use it pending the hearing and determination of the proceeding before her Honour. An undertaking in similar terms was given by them in respect of the hearing of the 8 May 2015 summonses. At that time, however, no similar undertaking was sought from, or given by, the 1^st plaintiff.

Some months later, when Ms Talacko recalled that the 1^st plaintiff was separately seeking relief in the Czech Republic, this seemingly sparked the attention of her legal representatives, and she issued the 26 August 2015 summons seeking injunctive relief against the 1^st plaintiff in relation to the first and second certificates. At the hearing of her summons held on 3 September 2015, the 1^st plaintiff appeared in person. As he had not attended any of the earlier hearings concerning the 8 May 2015 summonses, he did not understand why it was necessary for him to give an undertaking. But when the reason for doing so was explained to him by the Court, he readily volunteered to give an undertaking in similar terms to that given by the other plaintiffs. In those circumstances, the Court determined to make no order as to costs. And Ms Talacko does not now seek to have the Court revisit that order.[22]
[22]See Reply submissions of Ms Talacko (Reply to Stephen Howells) dated 28 August 2017, at [47].

During the course of the hearing on 3 September 2015, in response to questions from the Court, the 1^st plaintiff informed the Court that he was aware of another Certificate of Finality of Judgments and Orders, namely the third certificate. The existence of the third certificate was not apparent from a perusal of the Court file and neither the Court, nor the applicants were aware of it. In that event, the Court ordered the 1^st plaintiff, Dr Talacko, to file and serve, as soon as possible, an affidavit exhibiting a copy of the third certificate, together with any other material filed in support of the application made to the Prothonotary.

Against that background, I turn to consider the items of cost claimed by Ms Talacko as having been occasioned by the late disclosure of the third certificate:

Item (a): Preparation of and filing Ms Talacko’s 26 August 2015 summons, and related attendances

Item (b): preparation of the affidavit of Jonathan Guy Joseph sworn on 28 August 2015, and related attendances

Item (c): hearing on 3 September 2015 on the return of the 26 August 2015 summons, and related attendances

When viewed against the background facts, it seems clear to me that the 26 August 2015 summons, affidavit in support and the hearing on 3 September 2015 were not necessitated by the late disclosure of the third certificate. The undertaking that was sought from the 1^st plaintiff concerning the first and second certificates could easily have been sought from him at the outset, when the 8 May 2015 summons was issued. Indeed, if there were any prospect of the 1^st plaintiff seeking relief in the Czech Republic, it would have made sense to do so at that earlier point.

On or about 10 September 2015, Dr Talacko filed and served an affidavit exhibiting a copy of the third certificate. In his affidavit he said that he could recall making arrangements during the first half of 2013 to speak with the Prothonotary with the intention of obtaining, on behalf of his mother’s estate, a Certificate of Finality of Judgments and Orders in respect of the various judgments and orders of the Court in this proceeding, for use in legal proceedings in the Czech Republic. Some time later, he received the third certificate (dated 3 July 2013), but he has not been able to locate any affidavit, correspondence or other materials submitted to the Prothonotary in support of the application.

On 21 September 2015, Ms Talacko filed a summons, seeking to amend her 8 May 2015 summons, by enlarging its scope to cover the third certificate, and seeking an order that the undertaking given by them extend to any Certificate of Finality of Judgments and Orders issued by the Prothonotary. At or around the same time, Mr Findlay also filed a summons seeking (separate) relief in respect of the third certificate, but expressed in essentially the same form as the relief sought in his 8 May 2015 summons. Each of the 21 September 2015 summons was made returnable the next day.

On 22 September 2015, Dr Talacko filed and served a further affidavit in which he provided some further particulars about the provenance of the third certificate, and sought to correct some information he had earlier provided to the Court. In that regard, he informed the Court that the request he made of his solicitors in Prague had revealed that they did not possess a copy of the third certificate and had been using the first certificate on his behalf in the proceedings in the Czech Republic.

At the hearing on 22 September 2015, the solicitor for the 2^nd – 5^th plaintiffs gave an undertaking on their behalf in the enlarged form as sought by Ms Talacko, and that undertaking was expressed to apply until the determination of the 8 May 2015 summonses or further order. Orders were also made for, amongst other matters, the filing of a further affidavit by Dr Talacko.

On 6 October 2015, Dr Jan Talacko filed a further affidavit. In that affidavit he explained the steps that were taken by Mr Howells to assist him to obtain a certificate. Importantly, in providing that assistance to Dr Jan Talacko, Mr Howells was not acting as his barrister or legal representative. In essence, the affidavit records Dr Jan Talacko’s recall of the relevant events as follows.

(a) on or about 30 May 2013, Mr Howells spoke with the Prothonotary’s office with a view to obtaining a certificate on behalf of the estate of Dr Jan Talacko’s mother, the late Helena Marie Talacko;

(b) between 30 May 2013 and around July 2013, the Prothonotary signed and executed at least two copies of the third certificate dated 3 June 2013, at least one of which was retained by Mr Howells;

(c) on the basis of the information provided to Dr Jan Talacko by Havel Holasek Partners, the solicitors in Prague, it appears most likely that the third certificate was provided to them by Mr Howells, in person, during his visit to Prague in July 2013; and

(d) between 3 September 2015 (when the Court was first made aware of the existence of the third certificate) and 10 September 2015, Dr Jan Talacko made enquiries of Mr Howells and obtained a copy of the third certificate from him.

Against that background, it is surprising that Mr Howells did not inform the Court of the existence of the third certificate at any stage after the 8 May 2015 summonses were filed, and even more surprising that he did not so inform the Court when he appeared at the hearing on 3 September 2015. However, as noted above, Mr Howells now accepts that he should have, but did not, disclose or cause to be disclosed the existence of the third certificate, prior to it being disclosed by Dr Talacko on 3 September 2015, and he is prepared to pay or contribute to any costs that have been thrown away as a result of those failures on his part. I note that the language in which counsel for Mr Howells has recorded Mr Howells’ acknowledgement of these failures does not expressly mention the Civil Procedure Act. But the acknowledgement and apology so made is clearly by way of a response to the summonses Ms Talacko filed seeking relief under that Act. In those circumstances, I propose to treat the acknowledgement as an acknowledgment by Mr Howells that he has contravened his overarching obligation under s 26 to disclose the existence of documents, and that by failing to disclose the existence of the second and third certificates in a timely way, he engaged in conduct which was likely to mislead or deceive, contrary to his overarching obligation under s 21.

I turn now to deal with each of the additional items of work said by Ms Talacko to have been occasioned by the late disclosure of the third certificate (items (d) – (h) listed in paragraph 39 above).

Item (d): Preparation of the affidavit of Mr Jonathan Guy Joseph sworn on 15 September 2015, and related attendances

This affidavit exhibits a bundle of correspondence passing between Ms Talacko’s solicitors and Dr Talacko. One letter dated 11 September 2015, written by Ms Talacko’s solicitors to Dr Talacko, referred to the undertaking he had given to the Court on 3 September 2015, and requested that he take active steps to vacate a hearing fixed for 23 September 2015 in the ‘Set Aside Proceeding’ in the Czech Republic. The writer also noted that documents filed in the ‘Set Aside Proceeding’ showed that Dr Talacko had actually relied on the first certificate in that proceeding, and not on the third certificate as he had informed the Court on 3 September 2015. Mention was also made of the third certificate, noting that Ms Talacko ‘is yet to receive a copy’ of it and had not been served with any associated affidavit. By that point, or contemporaneously, however, Dr Talacko had filed his affidavit affirmed on 10 September 2015, which enclosed a copy of the third certificate. A copy of his letter by way of response and his affidavit was also exhibited to Mr Joseph’s affidavit.

In my view, the preparation of the affidavit of Mr Joseph sworn on 15 September 2015 was not occasioned by Mr Howells’ late disclosure of the third certificate.

Item (e): preparation of and filing Ms Talacko’s 21 September 2015 summons and related attendances

Item (h) preparation of and filing Ms Talacko’s 23 September 2015 summons and related attendances

The claims for items (e) and (h) are related. As noted earlier, the summons filed by Ms Talacko on 21 September 2015 sought to amend the 8 May 2015 summons, which by then had been heard, by adding in claims for relief in respect of the third certificate. The Court preferred the form of the fresh summons filed by Mr Findlay, which sought essentially the same relief in respect of the third certificate as had been sought in respect of the first and second certificates. Leave was given to Ms Talacko at the hearing on 22 September 2015 to issue a fresh summons in similar form, which was subsequently filed on 23 September 2015.

In my view, only one set of costs referable to a summons seeking relief in respect of the third certificate was occasioned by Mr Howells’ late disclosure. In the case of Ms Talacko, the relevant summons is that which was issued on 23 September 2015, following the discussion which took place at the hearing on 22 September 2015, and Ms Talacko is entitled to recover those costs on an indemnity basis.

Item (f): Preparation of the affidavit of Mr Jonathan Guy Joseph sworn on 21 September 2015, and related attendances

In this affidavit, Mr Joseph reported on the results of searches made by Ms Lucie Banyaiova, the attorney in the Czech Republic who was acting for Ms Talacko’s sons in the Set Aside Proceeding. He said that searches undertaken by Ms Banyaiova of the Court file in the Set Aside Proceeding apparently showed that the first certificate (among other documents) had been filed on behalf of Dr Talacko, but there was no copy of either the second or third certificate on the Court file. He noted that at the hearing in this proceeding on 3 September 2015, Dr Talacko had informed the Court that he did not rely on the first certificate in the Set Aside Proceeding.

It seems that Dr Talacko was mistaken as to which certificate had been relied upon in the Czech Republic, and while it was of assistance for the Court to be informed of the results of the searches undertaken by Ms Banyaiova, in my view, the preparation of the affidavit of Mr Joseph sworn on 21 September 2015 was not occasioned by Mr Howells’ late disclosure of the third certificate.

Item (g): Hearing on 22 September 2015 on the return of the 21 September 2015 summons, and related attendances

On the evening before the hearing on 22 September 2015, Ms Talacko’s solicitors forwarded to the Court executed minutes of consent order that had been agreed between her and the solicitors for the 2^nd – 5^th plaintiffs[23] and enquired whether the Court might make the orders ‘on the papers’ without requiring appearances. The Court declined to do so. A perusal of the transcript of the hearing on 22 September 2015 reveals that much of the hearing time involved the Court discussing with the representatives of the parties what steps were required to be taken in relation to the fresh summonses seeking relief in respect of the third certificate and whether it was likely that the fate of the third certificate would be effectively determined by the Court’s decision in relation to the first and second certificates. At the hearing, Mr K Loxley of counsel appeared for Dr Talacko. The orders, which were made by consent, included an order that the fresh summonses (filed by Mr Findlay and to be filed by Ms Talacko in substantially the same terms) seeking relief in respect of the third certificate be adjourned and relisted for hearing at a time to be fixed at, or following, the delivery of reasons in respect of the 8 May 2015 summonses. An order was also made requiring Dr Talacko to file a further affidavit concerning the provenance of the third certificate and the use made in proceedings in the Czech Republic of any certificate issued by the Prothonotary.
[23]The minute of consent orders provided for Ms Talacko to have leave to file an amended summons seeking relief in respect of the third certificate, the enlargement of the undertaking to be given by the 2^nd – 5^th plaintiffs (not to use or rely upon any certificates until the determination of the 8 May 2015 summonses), and reserved costs.

The fresh summonses seeking relief in respect of the third certificate were necessitated because the Court and the parties were not aware of its existence when the 8 May 2015 summonses were filed and heard. A directions hearing was required in order to discuss the interplay between the relief sought in the 8 May 2015 summonses and that sought (or to be sought) in respect of the third certificate, and what implications (if any) the determination of the 8 May 2015 summonses might have for the fresh summonses concerning the third certificate. If Mr Howells had made the Court aware of the existence of the third certificate in a timely way, it is likely that the directions hearing held on 22 September 2015 would not have been necessary. In the circumstances, I am satisfied that the directions hearing held on 22 September 2015 was occasioned by Mr Howells’ late disclosure of the third certificate and that Ms Talacko is entitled to recover the costs of item (g) above on an indemnity basis.

Issues as to costs in relation to the 8 May 2015 summonses

The 8 May 2015 summonses were filed by each of Ms Talacko and Mr Findlay respectively pursuant to the process that had been agreed between the parties and recorded in the joint memorandum that was provided to the Court. Each summons was in the same form, save for the identity of the person seeking to be appointed as the representative of the estate of the late Jan Emil Talacko.

In my reasons for judgment delivered on 13 November 2015, I found that Ms Talacko, rather than Mr Findlay, should be appointed to represent the estate. I observed that:

[171]Once Mrs Talacko indicated that she was prepared to take on the role as personal representative there was no obvious reason or necessity for Mr Findlay to continue to seek to do so. …

Having determined that Ms Talacko should be the representative, I then proceeded to make procedural orders appointing her nunc pro tunc from 8 May 2015 to represent the estate of the late Jan Emil Talacko, pursuant to Rule 16.03(1) of the Rules for the purposes of conducting the application for orders set out in the 8 May 2015 summons. However, before any of the substantive relief sought could be ordered, notices were required to be given under s 6(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to the Attorney-General of the Commonwealth and the Attorney-General of Victoria because the applications raised a ‘special federal matter’. Once the Court was informed that neither the Attorney-General for the Commonwealth nor the Attorney-General for Victoria wished to make any submission in response to the notification of the ‘special federal matter’, orders were made on 4 February 2016 declaring each of the first certificate and the second certificate invalid. By consent of the parties, all of the applications for costs made by Ms Talacko and Mr Findlay were adjourned and made returnable after the determination of any application(s) for leave to appeal and any subsequent appeal.

Ms Talackois entitled to her costs in relation to the 8 May 2015 summons

As Ms Talacko was the successful party, she is entitled to her costs in relation to the 8 May 2015 summons. Those costs, including reserved costs, are payable by the 2^nd – 5^th plaintiffs on a standard basis, to be taxed in default of agreement.

The 2^nd – 5^th plaintiffs seek a set-off and stay of enforcement of any costs order made in favour of Ms Talacko

In their revised written submissions, the 2^nd – 5^th plaintiffs submitted that any order this Court might make in favour of Ms Talacko:

(a) should be set-off against the costs order made by the Court of Appeal dated 27 June 2017 in favour of the 2^nd – 5^th plaintiffs in proceeding S APCI 2015 0110; and

(b) should otherwise be subject to a stay of enforcement, pending:

(i) the quantification of the 2^nd – 5^th plaintiffs’ damages on the remitter of proceeding S CI 2009 7819 (the 2009 Proceeding); and

(ii) the determination of any costs order in favour of the 2^nd – 5^th plaintiffs against Ms Talacko in that proceeding.[24]

[24]Second to Fifth Plaintiffs’ Revised Submissions on Costs, at [33].

Since those submissions were filed, however, Ms Talacko has filed two applications for special leave to appeal to the High Court of Australia from the judgment and orders of the Court of Appeal.[25] At the time of the costs hearing, no date had been fixed for the hearing of the applications for leave. However, perusal of the High Court’s website reveals that both applications were heard in Melbourne on 15 December 2017, and that in each case the High Court ordered that the application be dismissed with costs.[26]
[25]The applications are in substantially the same from, save that one is filed in proceeding S APCI 2015 0110, and the other is filed in the related proceeding, proceeding S APCI 2016 0035.
[26]See the High Court of Australia website:

At the hearing as to costs, Ms Talacko submitted that if special leave were granted, and she successfully appealed the judgment and orders of the Court of Appeal, then there would be no remitter of the 2009 Proceeding for an assessment of damages. Further, in that event, it may be expected that the 2^nd – 5^th plaintiffs would be ordered to pay her costs of the appeals to the Court of Appeal and the High Court. In those circumstances, Ms Talacko submitted that it would not be appropriate to make any set-off order in respect of an order for assessment of (presently unquantified) damages, particularly where the very order is subject to appeal processes and may conceivably be set aside. And if that be correct, she said it follows that there should be no stay of enforcement of any costs orders in her favour.

In the context of consideration of any orders for a set-off or stay, Ms Talacko also drew attention to the fact that orders have also been made in her favour requiring the 2^nd – 5^th plaintiffs to pay her costs of the appeal to the Court of Appeal from this proceeding (i.e., the costs of proceeding S APCI 2016 0024) and of the appeal to the High Court of Australia, the quantum of which will be substantial. In addition, on 10 July 2017, Croft J made an interlocutory freezing order, by consent, in the 2009 Proceeding, directed at Ms Talacko, freezing the sum of AUD$750,000 held on trust for her by her legal representatives.[27]
[27]The freezing order appears as exhibit JG-4 to the affidavit of Ms Good, solicitor for the 2^nd – 5^th plaintiffs, sworn on 1 August 2017.

In advance of the costs hearing, the solicitors for the 2^nd – 5^th plaintiffs informed the Court by email sent on 7 September 2017 that in order to narrow the issues in dispute at the hearing:[28]
[28]See email sent by Mr Tim Prudden of Brand Partners to Chambers of Justice Sloss, and copied to all parties.

(a) the 2^nd – 5^th plaintiffs proposed that they would not press any application for a set-off/stay order, but that they may seek to make such an application in the future, upon her Honour delivering judgment and the High Court of Australia determining the application for special leave in proceeding M97 of 2017; and

(b) the 2^nd – 5^th plaintiffs and Ms Talacko consented to the Court making an order giving the parties liberty to apply in respect of any order that her Honour might make in respect of the costs applications against the 2^nd – 5^th plaintiffs, which applications are to be heard on 12 September 2017.

Further, they stated that they understood that the above position to be one agreed to by Ms Talacko.

In the same vein, at the hearing on 12 September 2017, Mr Ciolek, counsel for the 2^nd – 5^th plaintiffs, informed the Court that he understood that Ms Talacko consents to an order that there be liberty to apply for any order that might need to be made in respect of any costs order made in Ms Talacko’s favour.[29] Senior counsel for Ms Talacko confirmed that that was the position.[30]
[29]Transcript 12/09/17, at 95 (Mr Ciolek).
[30]Transcript 12/09/17, at 95 (Mr Wyles QC).

If, as appears to be the case, Ms Talacko’s applications for special leave have now been dismissed, it will be a matter for the respective parties to provide an update to the Court following delivery of these reasons for decision, and for the 2^nd – 5^th plaintiffs to inform the Court as to whether orders for a set-off/stay are sought, and if so, the precise form of the proposed orders.

Mr Findlay is not entitled to his costsin relation to the 8 May 2015 summons

The estate of Mr Findlay also seeks to recover the costs he incurred in relation to his 8 May 2015 summons, and with respect to at least a portion of those costs he apparently seeks to do so on an indemnity basis.[31] The estate contends that, for the most part, Mr Findlay was also a ‘successful party’ in that he obtained the substantive relief he sought but failed at the last hurdle in his quest to be appointed as the representative. In essence, Mr Guss, who appeared for Mr Findlay at the hearing and now appears for the estate of Mr Findlay to seek costs, submitted that because each of Ms Talacko and Mr Findlay were seeking the same substantive relief, the procedure to be adopted was agreed between them, the legal representatives for Ms Talacko and Mr Findlay worked in tandem, the submissions made on behalf of each of them were complementary and there was no duplication. Further, he submitted that the 2^nd – 5^th plaintiffs acquiesced in that procedural course, and in those circumstances a similar order for costs should also be made in favour of Mr Findlay.
[31]At the hearing, when clarification was sought from Mr Guss as to the basis for the claim for indemnity costs he responded by saying it was ‘because of the late disclosure of the second certificate, and what transpired, and otherwise standard costs on the other matters.’ (See Transcript 12/09/17, at 95 (Mr Guss)).

I do not agree. First, the objective of the 8 May summonses was to have a representative appointed to challenge the validity of the certificates issued by the Prothonotary. Only one representative was required, and as I noted in my reasons, once Ms Talacko indicated that she was prepared to take on the role as personal representative there was no obvious reason or necessity for Mr Findlay to continue to seek to do so. That indication was first given in a formal sense by Ms Talacko on 16 December 2014, when she filed her original summons (which was heard by Daly AsJ).[32] Ms Talacko re-affirmed her preparedness to act when she filed a notice of appeal from the decision of Daly AsJ on 18 February 2015, and later her fresh procedural summons of 8 May 2015. From the outset she engaged solicitors and briefed senior and junior counsel to represent her in her pursuit to be appointed as the representative of her husband’s estate and to seek the substantive relief. In those circumstances, there was no necessity for a second suitor, or for any further legal assistance.
[32]Mr Findlay filed his original summons (i.e. that was heard by Daly AsJ) on 8 December 2014.

Before the Court, in conducting their respective cases, the legal representatives for Ms Talacko and Mr Findlay did work in tandem— a common Court Book was prepared, the submissions made on behalf of each of them were complementary and for the most part they adopted each other’s submissions. In that sense, there was no unnecessary duplication or wasting of the Court’s time, and their submissions were helpful and of real assistance to the Court. But that does not entail the consequence that dual representation was necessary. Were it not for the fact that there were two applicants with summonses in the same form seeking essentially the same relief, the Court would not have countenanced ‘double representation’, particularly having regard to the Court’s obligations under s 9 of the Civil Procedure Act.

Nor, in my view, did the procedural expedient of fresh summonses, that was devised by the parties when the Notices of Appeal were rendered futile, entail the consequence that the 2^nd – 5^th plaintiffs accepted that they would have to pay two sets of costs in the event that they were unsuccessful. Nor indeed did it follow that they could recover costs from each of Ms Talacko and Mr Findlay in the event that they were successful.

In support of their submission opposing the costs of dual or double representation, counsel for the 2^nd – 5^th plaintiffs, Mr Ciolek, referred to several cases decided in the insurance context by way of analogy, but noting that they ‘aren’t by any means on all fours with this case.’[33] In the leading case of Van Eeden v Henry,[34] a motor traffic accident case where two drivers sued each other following a collision on a remote rural road in which each driver was so seriously injured that neither could recall the circumstances of the accident, each driver had separate representation in their respective capacities as plaintiff and defendant. Under their respective third party insurance policies, the insurer had the right to defend proceedings but no rights in respect of the insured’s personal proceedings. This ‘double representation’ meant that the Court had before it four sets of solicitors and four sets of counsel, which added significantly to the costs of the proceeding. At first instance, both claims were dismissed on the basis that neither party had established a duty of care. On appeal, that decision was not disturbed.
[33]Transcript 12/09/17, at 108 (Mr Ciolek).
[34](2005) 62 NSWLR 301.

In dealing with the question of costs, the Court of Appeal of New South Wales held that courts should generally discourage double representation. Spigelman CJ (with whom Sheller and McColl JJA agreed) commenced by referring to the obligations imposed on courts to ensure that proceedings are conducted economically and efficiently and the public duty to manage proceedings in such a way as to avoid parties incurring unnecessary costs. His Honour continued, to observe:

[33]One of the powers which the Court must exercise in such manner, is the power to award costs. In my opinion when exercising the discretion to award costs the Court should only do so in a way which accepts double representation where the requirements of justice require that to be done. I accept that such cases will arise but, in my opinion, would do so rarely.
. . .
[40]There was of course no legal impediment to the separate representation of Mr Henry and Mr Van Eeden in their respective capacities as plaintiff and defendant. Nevertheless this Court has a discretion with respect to the award of costs and could refuse to make an order for costs in favour of a party whose separate representation was unnecessary or inappropriate.[35]

[35]Ibid, at 303–304.

Further, when his Honour turned to consider the role of the court in the exercise of the costs discretion, he stated:

[64]A court should exercise the discretion to award costs so as to create an incentive to ensure that only one set of legal representatives are appointed to represent an individual party who appears in a dual capacity as a plaintiff and a defendant, whether in separate proceedings or in proceedings involving a cross-claim. There will be cases where dual representation is appropriate. A party should seek the leave of the court in advance to be separately represented and, if leave is granted, full costs will generally be awarded.

. . .
[67]The exercise of the costs discretion would be directed to giving the litigant and his insurer an equal incentive to ensure that only one set of legal representatives are involved, at least after the initial stages of filing of pleadings. That incentive would arise if, in the normal case, a successful plaintiff would only receive one half of his or her costs if he or she were separately represented in the capacity of a defendant. Similarly if a successful defendant would only receive one half of his or her costs. That is the order appropriate here.[36]

[36]Ibid, at 307–308.

Even prior to the introduction of the suite of ‘overarching obligations’ in the Civil Procedure Act, and its counterparts in other States, a similar view has been expressed by courts when faced with separate representation of several defendants. In Statham v Shephard (No 2),[37] Woodward J said that the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases. But his Honour added to this ‘basic proposition’ three provisos, as follows:

In the first place, if a conflict of interest appears possible but unlikely, the defendants should make any necessary inquiries from the plaintiff as to the way in which his case is to be put if this would resolve the possibility of conflict between defendants. (See In re Lyell [1941] VLR 207])
Secondly, there could be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm’s length during the general course of litigation.
Thirdly, even if the defendants are acting reasonably in maintaining separate representation for some time or for some purpose, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time.[38]

[37](1974) 23 FLR 244.

[38]Ibid, at 246–247.

Mr Guss, in response, sought to distinguish the present case from the general approach adopted by the courts, referring to the fact that, at least initially in the proceedings before Daly AsJ, there were differences in the relief sought, and that for the purposes of the hearing concerning the 8 May 2015 summonses, it was agreed that the substantive issue would be dealt with in advance of the procedural issue as to whether Ms Talacko or Mr Findlay should be appointed to represent the estate. He also emphasised the co-operation between the legal teams for Ms Talacko and Mr Findlay in the running of the case. In my view, none of that operates as a reason or proper basis for departing from the general approach adopted by the courts. Ms Talacko’s legal team was demonstrably capable of marshalling the arguments in support of the substantive relief sought. Save for the identity of the person to be appointed as the representative of the estate, there was no conflict (or potential for conflict) between the cases advanced on behalf of Ms Talacko and Mr Findlay, and no separate representation was necessitated.

The 2^nd – 5^th plaintiffs submitted that Mr Findlay should pay their costs of his 8 May summons or alternatively, that he should bear his own costs of that summons. They contend that Mr Findlay chose to incur costs in circumstances where it was clear there was no reason or need for him to do so. They submitted that this was contrary to his obligation under s 7(1) of the Civil Procedure Act to ensure that legal costs are reasonable and proportionate (s 24), which obligation applied to Mr Findlay by operation of s 10(1)(d) of the Act.[39]
[39]See also Yara Australia Pty Ltd v Oswal (2013) 41 VR 502.

In my view, the appropriate order is that Mr Findlay (or his estate as the case may be) should bear his own costs of his 8 May 2015 summons.

Issues as to costs in relation to the summonses and notices of appeal filed by Ms Talacko (on 16 December 2014 and 18 February 2015) and by Mr Findlay (on 8 December 2014 and 25 February 2015) respectively

As noted earlier, following the death of the defendant, Jan Emil Talacko, each of Mr Findlay and Ms Talacko filed summonses seeking orders that they be appointed to represent his estate for the purposes of:

(a) in the case of Mr Findlay’s summons filed on 8 December 2014 – pursuing the relief sought by the defendant in his summons of 30 October 2014;[40] or

(b) in the case of Ms Talacko’s summons filed on 16 December 2014 – seeking orders declaring first, that the Prothonotary exceeded his powers in issuing the first certificate and, secondly, that the first certificate is invalid and is set aside; or alternatively seeking an order that the Prothonotary amend the first certificate as the Court deems appropriate.[41]

[40]By his 30 October 2014 summons, the defendant sought, relevantly, orders declaring the first certificate invalid and orders quashing that certificate; or in the alternative, an order requiring the Prothonotary to amend the first certificate.

[41]In their Revised Submissions on Costs, the 2^nd – 5^th plaintiffs stated (at paragraph 6) that:

At the hearing of her summons of 16 December 2014 before Daly AsJ, Mrs Talacko notified the Court that she no longer sought any order quashing the First Certificate as Jan Emil’s representative; rather, she sought merely to have the First Certificate amended. Accordingly, Mrs Talacko abandoned the relief sought in paragraph 3 of her summons. The Court did not require her to file a fresh summons, in light of time constraints.

(See also the Ruling of Daly AsJ at [17]).

Those summonses were heard before Daly AsJ on 22 December 2014. By a ruling delivered on 4 February 2015, her Honour dismissed each of the summonses on the grounds that they were incompetent. Relevantly, she stated:

[26]In my view, each of the applications should be dismissed on the grounds that the Summons is incompetent. Even if the Court is not functus officio in the 1998 proceedings, any application to challenge the validity of the [first certificate] ought to be made either to the Federal Court under the [Administrative Decisions (Judicial Review) Act 1977 (Cth)] or under O 56 of the Rules. I accept the submissions of senior counsel for the plaintiffs that even the more truncated relief proposed to be sought by Mrs Talacko, that the [first certificate] be amended, must amount to relief in the form of certiorari or mandamus, and as such, if sought in this Court, must be sought by a proceeding brought under O 56 of the Rules. After all, given the provisions of the [Foreign Judgments Act 1991 (Cth)], I doubt that the power rests with a Judge of this Court to amend the [first certificate]: rather, it is more likely that the Court would exercise its supervisory jurisdiction if it was thought fit to do so by directing that the Prothonotary amend the [first certificate]: that is, an order in the nature of mandamus. I do not need to make any findings that the applications have been brought under rule 16.03 to deliberately circumvent the judicial review jurisdiction of this Court or of any other court, but I do agree that it is appropriate that questions of standing and delay ought be fully ventilated.

Following delivery of the ruling, her Honour proceeded to make orders that day, dismissing the summonses and ordering that there be liberty to apply with respect to the costs of the applications. On 18 February 2015 Ms Talacko filed her notice of appeal, seeking orders that the ruling be set aside and that Ms Talacko be appointed to represent the estate of Jan Emil Talacko. The focus of Ms Talacko’s notice of appeal was directed to her Honour’s finding that her summons was incompetent and that Ms Talacko ought properly to have sought relief either in the Federal Court under the ADJR Act, or in a proceeding brought in this Court under O 56 of the Rules. Mr Findlay filed his notice of appeal on 25 February 2015 (albeit dated 18 February 2015) seeking to set aside the order dismissing his summons.

Prior to the notices of appeal being filed, however, TDE as the solicitors for the 2^nd – 5^thplaintiffs approached the Prothonotary on 6 February 2015, without informing the solicitors for Ms Talacko or the solicitors for Mr Findlay, and arranged for the issue of the second certificate. As a result of this occurrence, the notices of appeal were effectively rendered futile.

An appeal from an Associate Judge to a Judge of the Trial Division under s 17(3) of the Supreme Court Act 1986 is required to be brought in accordance with rules 77.06.1 to 77.06.9. Nowadays, an appeal under rule 77.06 is by way of a re-hearing,[42] rather than a hearing de novo as was formerly the case. Relevantly, what that means is that error must be demonstrated on the part of the associate judge before the appellate power is exercised.[43] Further, in Hou v Westpac Banking Corp, Warren CJ (at first instance) held that in an appeal from an Associate Judge, the Court will only allow an appellant to run a different case on appeal that is in conflict with its position at trial in ‘exceptional circumstances’, and where the Court is satisfied that it is ‘expedient in the interests of justice’.[44] That remains the position today, and courts do not lightly permit litigants to run a different case on appeal to that conducted at first instance. In that regard, counsel for the 2^nd – 5^th plaintiffs observed during argument:

Now it must follow that if Her Honour Associate Justice Daly didn't fall into error in dismissing Mrs Talacko's summons, then the notice of appeal dated 18 February 2015 of Mrs Talacko was also bound to fail. And there's some irony in the fact that the issue of the second certificate and the subsequent process that was adopted, in fact gave, on my submission, Mrs Talacko a better chance than she otherwise would've had at succeeding obtaining the relief that she sought.[45]

[42]Oswal v Carson [2013] VSC 355, at [11].

[43]Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310, at [30]; Hou v Westpac Banking Corp [2015] VSCA 57, at [44]. See also the commentary in Williams’ Civil Procedure Victoria, (Lexis Nexis) at [77.06.0].

[44]Hou v Westpac Banking Corp [2014] VSC 606, at [33] quoting Multicon Engineering v Federal Airports Corporation (1997) 47 NSWLR 631, 645.

[45]Transcript 12/09/17, at 98 (Mr Ciolek).

On 1 May 2015, outlines of written submissions were filed by each of Ms Talacko and Mr Findlay in support of their notices of appeal. By that point, each of them, and the Court, had been informed that the Prothonotary had issued a second certificate, and had been provided with a copy of it. The second certificate was expressed to be ‘an amendment’ and one that ‘replaces in its entirety the [first] certificate’. In those circumstances, their outlines of submissions were required to deal with arguments raised in respect of each of the certificates. But a perusal of those outlines reveals that the cases sought to be run on appeal by each of Ms Talacko and Mr Findlay had also been finessed or adjusted to better respond to the objections to competency that had been upheld by Daly AsJ. For example, Ms Talacko sought not only to have the first certificate amended but also to have it quashed in its entirety. And while she continued to deny that the decision of the Prothonotary to issue a certificate under the Foreign Judgments Act 1991 (Cth) was one that was amenable to review under the ADJR Act, she contended, for the first time, that:

[29]If, contrary to the submissions in pars. 23-28, it were held that the issuing by the Prothonotary of the [first certificate] involved a decision to which sec. 9 of the AD(JR) Act applies, it would be appropriate for the Supreme Court to exercise the jurisdiction conferred by sec. 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) . . .
Section 4(1) is qualified by certain provisions dealing with “special federal matters”. . . . Section 6(3) empowers the Supreme Court to make an order that a pending proceeding which is a special federal matter be determined by the Supreme Court “if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties”. Sub-section (4) requires a written notice specifying the nature of the special federal matter to be given to the Attorney-General of the Commonwealth and the Attorney-General of the State before an order is made under sub-sec. (3). . . . Hence, if sec. 6(3) and (4) were complied with, the Supreme Court would have jurisdiction to determine this matter.[46]

[46]Outline of Submissions of the Appellant Judith Gail Talacko, at [29].

Further, each of Ms Talacko and Mr Findlay articulated a new basis for seeking that broader relief, namely by relying upon s 58(3) of the Bankruptcy Act 1966 (Cth). Relevantly, s 58(3) provides that it is not competent for a creditor to enforce any remedy against the person or property of the bankrupt in respect of a provable debt. They contended that because the defendant was an undischarged bankrupt, s 58(3) operated to render the application for the issue of a certificate under s 15 of the Foreign Judgments Act1991 (Cth) one that was not ‘duly made by a judgment creditor’ who was capable of enforcing a judgment that had been given by an Australian court within the meaning of that section, with the result that the Prothonotary had no power to issue the first certificate or indeed the second certificate.

Once the parties agreed that the appeals had effectively been rendered futile by the issue of the second certificate, the new summonses were issued, and the submissions that were filed in respect of the notices of appeal were relied upon at the hearing of the 8 May 2015 summonses.

Orders sought by the 2^nd – 5^th plaintiffs

Counsel for the 2^nd – 5^th plaintiffs submitted that it was not until Ms Talacko ‘altered her case on appeal’ and sought broader relief in the nature of certiorari and on grounds that she had not agitated before Daly AsJ ‘that she for the first time claimed relief that would have been available to her.’[47] Accordingly, they contend that on the case that Ms Talacko advanced before Daly AsJ, there was no utility in her seeking to be appointed to represent the defendant to seek relief which the Court had no power to give, and thus the order Daly AsJ made dismissing her summons was not erroneous, and Ms Talacko’s appeal was bound to fail.
[47]Second to Fifth Plaintiffs’ Revised Submissions on Costs, at [23].

Against that background, the 2^nd – 5^th plaintiffs submitted that, notwithstanding that they conceded that any appeal from Daly AsJ’s ruling was rendered nugatory by the issue of the second certificate, there were no exceptional circumstances advanced by Ms Talacko that would justify the Court permitting her to run a different case from that which she ran before Daly AsJ, and in the circumstances, it would be unjust for Ms Talacko to receive her costs of the 16 December 2014 summons.[48] They submitted that the Court should make orders that:

(a) Ms Talacko pay the 2^nd – 5^th plaintiffs’ costs of her 16 December 2014 summons; or in the alternative, there should be no order as to costs of that summons; and

(b) Ms Talacko should pay the 2^nd – 5^th plaintiffs’ costs of her 18 February 2015 notice of appeal; or in the alternative, there should be no order as to the costs of that notice of appeal.

[48]In their Revised Submissions on Costs, the 2^nd – 5^th plaintiffs noted (at [30]) that Ms Talacko makes no submission in respect of the costs of her 16 December 2014 summons.

A similar position is advanced by the 2^nd – 5^th plaintiffs in respect of Mr Findlay’s summons and notice of appeal. The 2^nd – 5^th plaintiffs submit that:

(a) Mr Findlay should pay the 2^nd – 5^th plaintiffs’ costs of his 8 December 2014 summons and notice of appeal dated 18 February 2015; or

(b) alternatively, Mr Findlay should bear his own costs of that summons and notice of appeal.

In essence, the 2^nd – 5^th plaintiffs submit that the relief which Mr Findlay sought was an order appointing him to represent the estate of Jan Emil Talacko for the purposes of prosecuting an application brought by him as the defendant. The substantive relief sought was derivative and contingent upon Mr Findlay obtaining an order to represent the estate. Relevantly, he was not otherwise ‘a person who is aggrieved by a decision to which this Act applies’ within the meaning of s 5(1) of the ADJR Act. Accordingly, in the absence of Mr Findlay obtaining an order under r 16.03 to represent the estate, he had no standing to seek the relief set out in his summons.

The 2^nd – 5^th plaintiffs submit that as Mr Findlay was not successful in obtaining such an order, costs ought to follow the event and he ought to be ordered to pay their costs. Further, they say that if the Court makes an order that the 2^nd – 5^th plaintiffs pay any part of Ms Talacko’s costs of her summons and notice of appeal, ‘it would be palpably unjust if they were ordered also to pay any portion of Mr Findlay’s costs of his 8 December 2014 summons or 18 February 2015 notice of appeal.’[49] They submit that in circumstances where each of Ms Talacko and Mr Findlay sought relief on behalf of the estate of Jan Emil Talacko, his estate was doubly represented, and the 2^nd – 5^th plaintiffs ought not to be required to pay the costs of having been vexed by two different applicants, with identical interests, save in respect of the identity of the representative.
[49]Second to Fifth Plaintiffs’ Revised Submissions on Costs, at [69].

Orders sought by Ms Talacko

Ms Talacko does not seek any order that the 2^nd – 5^th plaintiffs pay her costs of her 16 December 2014 summons.[50] She submits that in the event that she does not succeed with her application against Mr Howells in relation to the first certificate, there should be no order as to the costs of her 16 December 2014 summons. Further, she submits that if her applications under the Civil Procedure Act in relation to the first and second certificates do not succeed, then the 2^nd – 5^th plaintiffs should be ordered to pay her costs of the appeal brought by her notice of appeal filed on 18 February 2015.[51] Ms Talacko rejected the notion advanced by the 2^nd – 5^th plaintiffs that she should be ordered to pay their costs of the summons and the notice of appeal, contending that it was ‘plainly reasonable’ for her to have issued the 16 December 2014 summons, and to have pursued an appeal from the ruling of Daly AsJ.
[50]Reply submissions of Judith Gail Talacko (re Second to Fifth Plaintiffs’ Revised Submissions on Costs), at [4].
[51]Reply submissions of Judith Gail Talacko (re Second to Fifth Plaintiffs’ Revised Submissions on Costs), at [5].

Orders sought by Mr Findlay

Mr Findlay sought orders that the 2^nd – 5^th plaintiffs should pay the costs of his summons and notice of appeal on an indemnity basis.[52] In essence, Mr Findlay submitted that he had a legitimate interest in pursuing the relief sought. Further, he said that, unlike Ms Talacko, Mr Findlay was effectively seeking to continue the application as made by the defendant in his summons filed on 30 October 2014.[53] Mr Guss maintained that it was appropriate for Mr Findlay to continue to pursue the application, and submitted that while it does not appear in the ruling, nevertheless at the hearing before Daly AsJ, both Mr Findlay and Ms Talacko did contend that the first certificate ought be declared invalid because of s 58(3) of the Bankruptcy Act 1966. He also relied on the fact that in her ruling, Daly AsJ said she would not reject Mr Findlay’s application on the basis that he had no interest in the subject matter of the 1998 proceeding (before McDonald J) or the current proceeding.
[52]Outline of submissions on behalf of David Jellicoe Findlay, at [66]; see also Submissions on behalf of David Jellicoe Findlay, at [25].
[53]The defendant’s summons apparently came on for hearing before McDonald J on 6 November 2014. Mr Guss, who appeared for the defendant, was at that point unaware of the death of Jan Emil Talacko on 3 November 2014. The summons was adjourned to 18 November 2014, and then further adjourned to 8 December 2014. In advance of the hearing as to costs issues, the parties were informed that I did not propose to make any orders in relation to the defendant’s summons, and that any application in that regard should be made before McDonald J.

Conclusion as to costs in relation to the summonses and notices of appeal

In my view, in the exercise of the Court’s discretion, the appropriate order to be made in respect of the summonses heard before Daly AsJ and the notices of appeal from her Honour’s ruling is that there be no order as to costs. (I leave to one side any order to be made in respect of the Civil Procedure Act summonses filed by Ms Talacko).

In circumstances where the appeals were rendered futile, the grounds of error alleged by Ms Talacko and Mr Findlay in their notices of appeal did not fall to be determined by the Court. That the appeals were rendered futile was not caused by, nor was it the fault of, any party. Whether leave to appeal would or would not have been granted is now hypothetical.

Where there has been no hearing on the merits, the Court is ‘necessarily deprived of the factor that usually determines whether or how it will make a costs order.’[54] That is to say, because the notices of appeal did not proceed to be heard, and the competing arguments were not tested, there was no ‘successful party’.
[54]Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 (McHugh J).

The present case does not fall into that category of ‘rare’ cases adverted to by McHugh in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin where his Honour said:

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. . . . But such cases are likely to be rare.[55]

[55]Ibid, at 625.

One might observe that the case that was ultimately argued before the Court pursuant to the fresh summonses of 8 May 2015 was not constrained in any way by the case as it had been argued before Daly AsJ. Nor, importantly, was ‘error’ required to be demonstrated before the Court’s appellate power was enlivened. The fresh summonses raised what were, on any view, difficult questions for determination by the Court, and in the final outcome, the Court found that the ADJR Act does apply to the issuing of a certificate by the Prothonotary under s 15 of the Foreign Judgments Act 1991 (Cth). However, the prospect of the Supreme Court being in a position to exercise the jurisdiction conferred by s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) was not something that was canvassed at the hearing before Daly AsJ.

Accordingly, in my view, when regard is had to all of the circumstances, the appropriate order is that there be no order as to costs of either summons before Daly AsJ or the appeals commenced by the notices of appeal from her Honour’s ruling.

Issues as to costs in relation to summonses filed by Ms Talacko (dated 23 September 2015) and Mr Findlay (dated 21 September 2015) concerning the third certificate

During the course of a hearing on 3 September 2015, the Court and the parties (other than the 1^st plaintiff, Dr Jan Talacko) became aware for the first time of the existence of a third certificate. At the hearing, Dr Jan Talacko undertook, among other things, not to seek to use or rely on any ‘Certificate of Finality of Judgments and Orders’ as issued by the Prothonotary until the determination of the 8 May 2015 summonses or further order.[56] Shortly thereafter, each of Ms Talacko and Mr Findlay filed a summons (framed in similar terms to their 8 May 2015 summonses) seeking relief against the 1^st plaintiff in respect of the third certificate.
[56]The undertaking was recorded under ‘Other Matters’ in the Order made on 3 September 2015.

By that point in time, the Court had heard, but not determined, the 8 May 2015 summonses. All of the parties were in agreement that because of the similarity in the content of the first and third certificates, it was likely that the fate of the third certificate would effectively be determined by the Court’s decision concerning the first (and second) certificates.[57] Accordingly, orders were made on 22 September 2015 adjourning the summonses pertaining to the third certificate to a date to be fixed at or following the delivery of reasons in respect of the 8 May 2015 summonses. On 4 February 2016, orders were made in respect of the third certificate, similar to those made in respect of the first and second certificates, including orders that the applications for costs made by Ms Talacko and Mr Findlay be made returnable for determination at the same time as the determination of issues as to costs arising in respect of their applications concerning the first and second certificates.
[57]The only difference between the first certificate and the third certificate is that paragraph 5 of the first certificate commences with the words ‘[w]hereas the Plaintiffs Alexandra Bennett, Martin Talacko and Rowena Talacko seek’, whereas paragraph 5 of the third certificate commences with the words ‘[w]hereas the personal representative of the erstwhile First Plaintiff Helena Marie Talacko seeks’.

Orders sought by Ms Talacko

Ms Talacko filed submissions dated 31 July 2017 and 28 August 2017 which, for the most part, relate to her 29 January 2016 summons concerning alleged breaches of the Civil Procedure Act. In her 31 July 2017 submissions, she submitted, however, that if her submissions in relation to the Civil Procedure Act are not accepted, ‘Dr Talacko should be ordered to pay Ms Talacko’s costs of her summonses of 21 September 2015 and 23 September 2015,[58] given that the Court has granted the relief sought by Ms Talacko in respect of the Third Certificate.’[59]
[58]The summons of 21 September 2015 was effectively amended and replaced by the 23 September 2015 summons.
[59]Outline of Submissions of Judith Gail Talacko filed on 31 July 2017, at [43].

The submissions Ms Talacko filed on 28 August 2017 were made in reply to the submissions of Mr Howells dated 21 August 2017, and do not address the position of the 1^st plaintiff. This is because on 24 August 2017, Ms Talacko’s solicitors informed the Court, by email, that:

Ms Talacko’s claims against Dr Talacko under her 29 January 2016 summons have been resolved, including on the proposed basis that:
·the words “and the first plaintiff” in paragraph 1 of the summons be deleted; and
·the words “and the first plaintiff” in paragraph 2 of the summons be deleted.

Subject to any order the Court may consider appropriate, Ms Talacko and Dr Talacko have also agreed to release one another from any claims in respect of Ms Talacko’s summonses filed in [Supreme Court proceeding no S CI 1998 07393] on 21 September 2015 and 23 September 2015, whether under the Civil Procedure Act 2010 or otherwise.
In the circumstances, would you please indicate whether her Honour would accept an amended version of Ms Talacko’s 29 January 2016 summons incorporating the above amendments and, if so, whether the proposed amended summons should be filed in the Registry or by other means.
Mr Howells’ solicitors (Peter Rashleigh and Belinda Randall of DLA Piper) and Dr Talacko’s solicitors (Ben Patrick and Sophie Ulhorn of Grindal & Patrick) are copied to this email.[60]

[60]Email from Jonathan Joseph of Strongman & Crouch, dated 24 August 2017.

Accordingly, the position is that Ms Talacko no longer seeks any costs order against the 1^st plaintiff in respect of her summonses of 21 September 2015 and 23 September 2015.

Orders sought by Mr Findlay

In respect of the third certificate, Mr Findlay seeks the costs of his summons dated 21 September 2015, including the costs reserved in the orders made on 4 February 2016. He submits that the issue of the summons ‘was necessitated by the revelation of the issue of the third certificate to [the 1^st plaintiff] on 3 June 2013.’[61] In support of his claim for costs, which he contends ‘should be paid by the first plaintiff on an indemnity basis,’[62] Mr Findlay adopts the contentions contained in Ms Talacko’s outline of submissions dated 31 July 2017 and 28 August 2017,[63] as applicable to him.
[61]Outline of Submissions of David Jellicoe Findlay, at [68].
[62]Outline of Submissions of David Jellicoe Findlay, at [71].
[63]These submissions relate to her 29 January 2017 summons concerning alleged breaches of the Civil Procedure Act 2010.

Dr Jan Talacko’s submissions in response

The 1^st plaintiff, Dr Jan Talacko, filed written submissions opposing the costs orders sought by Mr Findlay. Dr Jan Talacko submits that no order as to costs should be made; alternatively, he says that in circumstances where Mr Findlay’s summons was dismissed, Mr Findlay ought to pay his costs.

In support of his primary submission that there should be no order as to costs, Dr Jan Talacko points to the fact that, at the hearing on 22 September 2015, he consented to the orders sought by Ms Talacko (and Mr Findlay) in recognition of the fact that the reasons for decision in respect of the first (and second) certificates, when delivered, would also apply to the third certificate. Secondly, he says that in circumstances where there are two applicants seeking identical relief (i.e., orders declaring the third certificate invalid) a respondent to an application should not normally have to face two separate sets of costs.[64] Indeed, he submitted that it is ‘only in the most extreme circumstances’ that this will be so.[65] As Ms Talacko was ultimately appointed by the Court to represent the estate, and Mr Findlay was unsuccessful, Dr Jan Talacko submitted that he should not be required to pay Mr Findlay’s costs.
[64]SCI Operations Pty Ltd v Australian Manufacturers Ltd (1983) 51 ALR 365 at 373.
[65]Carnie v Esanda Finance Corporation Ltd (1996) 38 NSWLR 465 at 470.

Insofar as Mr Findlay relies upon Ms Talacko’s submissions filed in relation to alleged breaches of the Civil Procedure Act to support his claim for costs, Dr Jan Talacko submits that the relief sought by Mr Findlay must be considered in light of the following circumstances:

(a) Ms Talacko’s summons, insofar as it relates to him, has been resolved;

(b) Ms Talacko’s further submissions of 28 August 2017 were made after that resolution had been achieved, and as such do not address or concern the position of the 1^st plaintiff;

(c) The relief sought in Ms Talacko’s summons arose by an alleged breach of the Civil Procedure Act, a distinct and absent element to Mr Findlay’s summons and affidavit in support;[66]

(d) Mr Findlay has asserted no other basis for his costs.

[66]See the affidavit of Mr Joseph Guss sworn on 21 September 2015.

Accordingly, Dr Jan Talacko submits that, in the circumstances, Mr Findlay is not entitled to the costs he seeks.

Alternatively, if, contrary to Dr Jan Talacko’s primary submission, any costs order were to be made, the usual course is that costs follow the event, and he submits that Mr Findlay ought to be ordered to pay the costs of the 1^st plaintiff.

Conclusion

In my view, for similar reasons to those set out above in relation to Mr Findlay’s 8 May 2015 summons, no order as to costs should be made in respect of Mr Findlay’s 21 September 2015 summons. The declaratory relief ultimately granted in respect of the third certificate was effectively determined by application of the Court’s reasons for decision in respect of the other certificates. Ms Talacko was successful in being appointed by the Court as the representative of the estate for the purposes of seeking that relief. Mr Findlay was well aware that Ms Talacko had issued a summons on 21 September 2015 seeking declaratory relief, which summons was effectively amended and replaced by her 23 September 2015 summons. In those circumstances, there was no necessity for a second summons to be issued (or perhaps more correctly, pursued) by Mr Findlay in order to seek that relief, and the 1^st plaintiff should not be met with the associated costs of doing so. Further, I note also that even if an order as to costs were to be made, Mr Findlay has not advanced any proper basis that would justify the award of such costs on an indemnity basis.

Orders sought by Ms Findlay and Ms Rigg pursuant to rules 9.06 and/or 9.09 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that they be added as parties, or substituted for Mr Findlay for the purposes of seeking costs orders

As noted earlier, by summons filed on 11 August 2017, Ms Findlay and Ms Rigg, as executors of Mr Findlay’s estate, seek orders pursuant to rules 9.06[67] and/or 9.09[68] of the Rules that they be added as parties or substituted for Mr Findlay, in order to represent his estate for the purposes of pursuing the relief by way of costs sought in the summonses filed by him in respect of the ’first certificate’ and the ‘second certificate’ and in respect of the ‘third certificate’ respectively. An affidavit of Ms Findlay sworn 10 August 2017 was filed in support of the summons. I note that the service of that affidavit and summons was the first occasion on which the parties and the Court were informed that Mr Findlay had died on 5 March 2017, and that Ms Findlay and Ms Rigg were seeking orders that they be permitted to pursue applications for orders for costs in his favour in accordance with the submissions filed on his behalf dated 29 January 2016, and in respect of the application for costs that was adjourned by the Court on 4 February 2016.
[67]Relevantly, rule 9.06 provides that at any stage of a proceeding the Court may order that a person ‘whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon’ may be added as a party, or substituted for one who ceased to be a party. Rule 9.07(1) provides that ‘a person shall not be added as a plaintiff without that person’s consent signified in writing or in such other manner as the Court orders’. It seems likely that this rule would also apply in the case of a person who is substituted as plaintiff for another.
[68]Rule 9.09 addresses the situation where a party to a proceeding dies, but the cause of action survives. Rule 9.09(2) provides:
Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order—
(a)that the other person be added as a party to the proceeding or made a party in substitution for the original party; and
(b)that the proceeding be carried on as so constituted.

Mr Guss, who appeared for both Mr Findlay and the executors of his estate, submitted that such substitution of Ms Findlay and Ms Rigg for Mr Findlay should be ordered nunc pro tunc if the Court deems it necessary or just to do so.

By way of additional background, it is relevant to note that, in the present case, once the High Court had delivered its decision on 3 May 2017, and the parties sought to have the matter re-listed for the hearing of submissions on the issues as to costs, the Court established and notified to the parties a timetable for the filing of any affidavit material and submissions (including any ‘updating’ of the submissions that had been filed in January 2016) by 17 August 2017, followed by any affidavit material and submissions in reply by 24 August 2017. That timetable was directed to allowing the hearing of issues as to costs to proceed on 12 September 2017, in an orderly way, and to ensure that each party was accorded procedural fairness and apprised, in advance of the hearing, of the submissions being made against them. Some minor adjustments to the timetable were made along the way in consultation with the Court and the other parties.

Mr Findlay had filed an outline of submissions as to costs on 29 January 2016, in advance of the 4 February 2016 hearing at which the substantive orders were made. Belatedly, on 29 August 2017, a further set of written submissions were filed on behalf of Mr Findlay, setting out a more expansive claim for costs orders, apparently in response to the notification made to other parties and the Court of the consent orders and consensual arrangements that had been reached between TDE and Ms Talacko concerning her Civil Procedure Act summons filed and served on 25 January 2016. No similar Civil Procedure Act summons had been filed by or on behalf of Mr Findlay. But, in those written submissions, Mr Guss submitted for the first time that TDE (as an alternative to the 2^nd – 5^th plaintiffs) should pay Mr Findlay’s costs of the appeal from the orders of Daly AsJ made on 4 February 2015, seemingly on the basis that:

The responsibility in respect of the second certificate and the rendering of the appeal from the orders of Daly AsJ of 4 February 2015 futile, fall primarily on the 2-5^th plaintiffs, although TDE have stood at least partly in their shoes, so to speak, in agreeing to pay Mrs Talacko compensation and costs they have agreed to do.
The same principles apply to Mr Findlay as apply to Mrs Talacko in this regard and it is submitted that the 2-5^th plaintiffs should be ordered to pay Mr Findlay’s costs thrown away in this regard (or alternatively the non party, TDE should be ordered to do so), if the Court deems an award of costs should be made in favour of Mr Findlay’s costs in this respect, which it is submitted in the premises it should.[69]

[69]Outline of submissions of David Jellicoe Findlay, at [60]–[61] (emphasis added).

Further, Mr Guss submitted that because Mr Findlay has been represented according to the agreed procedure between the parties, even though he was not appointed to represent the estate of Jan Emil Talacko, nevertheless ‘he can be regarded as having been a successful party in the proceeding’.[70] Thus, he contended:

Costs should accordingly ‘follow the event’ and an order should be made that the 2-5^th plaintiffs pay Mr Findlay’s costs of his summonses in relation thereto on an indemnity basis (or alternatively TDE in respect of the appeal costs thrown away as above).[71]

[70]Outline of submissions of David Jellicoe Findlay, at [65].

[71]Outline of submissions of David Jellicoe Findlay, at [66] (emphasis added).

On 31 August 2017, the solicitors for TDE wrote to Mr Guss in connection with the belated application for costs against TDE. They invited him immediately to withdraw that ‘application’, noting amongst other things that it was not the subject of any relevant summons filed on Mr Findlay’s behalf, and pointing to the late notice of the application. Importantly, they observed that:

(v) TDE made forensic decisions based on the absence of any such application by Mr Findlay, and TDE would suffer prejudice if Mr Findlay’s representatives were permitted to advance such applications at this stage; and (vi) in any event there is a real question whether the rights invoked by Mr Findlay are transmissible rights (i.e., rights which passed to the representatives of Findlay’s estate under s. 29 of the Administration and Probate Act 1958 (Vic).)[72]

[72]See Affidavit of Christien William Corns sworn 11 September 2017, at exhibit ‘CWC-B’.

The solicitors for TDE continued in their letter to set out the basis on which they contended that there was some doubt about whether the right to bring a further application is a ‘cause of action’ within the meaning of s 29. They also cited the decision of Kaye J in Skene v Dale[73] as supporting an argument that rights formerly vested in Mr Findlay, being personal rights derived from the Civil Procedure Act 2010 or the Rules, abated upon death.
[73][1990] VR 605, at 612–614.

Mr Guss responded to the letter from TDE’s solicitors by letter dated 6 September 2017, setting out the basis on which he contended an order for substitution or joinder should be made by the Court and the reasons why he contended costs orders should be made against TDE. In essence, he said that it was not until TDE’s solicitors advised the other parties by email on 24 August 2017 that Ms Talacko’s claim against TDE had been settled that he was aware TDE would be making admissions that ‘they had misled the court by not disclosing the 2^nd certificate’ and ‘had contravened provisions of the [Civil Procedure Act]’ and in those circumstances the executors ‘could hardly have been expected to have made the alternative claim they did in paragraphs 61 and 66 of Mr Findlay’s submissions of 29 August 2017 before then’.[74] Further, he stated:

As it is an alternative claim, and the costs have already been claimed under the CPA against the 2-54^th [sic] plaintiffs in Mr Findlay’s submissions of 29 January 2016, TDE would have been aware thereof since then.
It is true that a specific summons has not been issued against TDE by Mr Findlay as Mrs Talacko did on 25 January 2016), however the Court has power to order costs against TDE notwithstanding that such summons has not been issued.
If anything turns on it we could seek instruction to issue such a summons promptly this week claiming such costs in the alternative against TDE. However this would only increase the potential costs that may be awarded against TDE.[75]

[74]See Affidavit of Christien William Corns sworn 11 September 2017, at exhibit ‘CWC-D’.

[75]Ibid.

At the hearing, TDE opposed both the grant of any such relief by way of a costs order in favour of Mr Findlay, whether under the Civil Procedure Act 2010 or against a lawyer under r 63.23, and also the application for the joinder or substitution of the executors for Mr Findlay.

I do not propose to entertain any application made by or on behalf of Mr Findlay for ‘alternative’ relief against TDE. If Mr Findlay wished to pursue a claim against TDE under the Civil Procedure Act 2010, as Ms Talacko did, then the application was required to be made in accordance with s 30. Relevantly, s 30(2) and (3) provide that:

(2)An application for an order under section 29 must be made prior to the finalisation of the civil proceeding to which the application relates (excluding any period for appeals).
(3)For the purposes of subsection (2), if an order, including an order in respect of costs, is made after the date of finalisation of the civil proceeding to which the application relates, the date of making the last of the orders is taken to be the date of finalisation of that proceeding.

In Kenny v Gippsreal Ltd,[76] Vickery J considered the time limitation specified in s 30. His Honour noted that the term ‘finalisation’ of a civil proceeding is not defined in the Act, and nor does it enjoy any accepted meaning as a term of art in statutory or general law.[77] His Honour said he did not equate the phrase ‘finalisation of [a] civil proceeding’ as used in s 30(2) with a ‘final order’ (as opposed to an ‘interlocutory order’), as that phrase is used in civil procedure.[78] He stated that in his view:

In this context, in its ordinary and natural meaning the word ‘finalisation’ as used in s 30(2) means to “complete”, conclude” or “bring to an end” the relevant civil proceeding. It is a concept to be applied looking at the position at the end of a case overall and in a practical way, rather than in any technical sense.[79]

[76][2015] VSC 284,

[77]Ibid, at [45].

[78]Ibid, at [46].

[79]Ibid, at [49].

His Honour also referred to the provisions of s 30(3), noting that where an order in respect of costs is made after the ‘finalisation’ of the relevant civil proceeding, the date of the making of the last of those orders is taken to be the date of finalisation of the proceeding. However, his Honour stated that he did not accept that the effect of s 30(3) was to defer the date of ‘finalisation’ of the relevant civil proceeding to the date on which a party’s costs application is finally determined following the making of orders which would result in the ‘finalisation’ of the proceedings. He said that construing the subsection in that way would itself extend the time in which to make an application for the s 29 costs order, notwithstanding the clear legislative intent to provide for the time limit set out in s 30(2).[80]
[80]Ibid, at [65].

In the present case, because the Court has not yet made final orders in respect of the 8 May 2015 summonses, it seems clear that ‘finalisation’ of the proceeding for the purposes of s 30 of the Civil Procedure Act 2010 has not yet occurred. Ms Talacko filed her summons seeking relief in respect of alleged contraventions of the Act concerning the first and second certificates on 25 January 2016, and in respect of alleged contraventions of the Act concerning the third certificate on 29 January 2016.[81] No application was made by Mr Findlay by summons in advance of the making of the substantive orders on 4 February 2016, nor has any application been sought to be filed since then. Similarly, no application for an extension of time under s 31 has been made by or on behalf of Mr Findlay. Further, in my view, no application for relief to be sought by or on behalf of Mr Findlay against TDE as legal practitioners under r 63.23 was fairly notified to them in advance of the filing of submissions by Mr Guss purportedly on behalf of Mr Findlay on 29 August 2017.
[81]In those circumstances, in my view, there is no need for any extension of time to be sought by her.

In the later case of Gippsreal Ltd v Kenny,[82] where the Court of Appeal was dealing with an application for leave to appeal against an order of a judge in the Trial Division (in a related decision) that dismissed two summonses seeking orders against counsel and solicitors under r 63.23 of the Rules, their Honours made clear that any person who seeks a costs order against a lawyer under r 63.23 must act expeditiously. In their joint reasons for judgment, their Honours stated:

A person who believes that a lawyer has acted in a manner that warrants the making of a costs order against the lawyer under the rule must act expeditiously in applying for such an order rather than keeping such an application in reserve to be activated years later depending on intervening events.[83]

[82][2016] VSCA 319.

[83]Ibid, at [95] (Whelan, Priest and Kyrou JJA).

A little later in their reasons, their Honours noted that unlike s 30 of the Civil Procedure Act 2010, r 63.23 of the Rules does not specify any temporal requirement for the making of an application for an order under that rule. But they observed that such an application should be made no later than the time when the parties seek final orders for costs in a proceeding and should be exercised as expeditiously as the requirements of procedural fairness permit. Nevertheless, their Honours accepted that there may be circumstances which prevent a party from making an application under r 63.23 of the Rules at the time when final orders for costs are sought, citing as an ‘obvious circumstance’ the case ‘where that party is not aware at that time that a lawyer engaged in conduct falling within r 63.23.’[84] Further, they noted, where an application for costs under r 63.23 is based on an alleged breach of an overarching obligation by a lawyer, the bringing forward of such an application must heed the clear legislative intention as to timing expressed in that Act:

This is because ss 30 and 31 of the CPA evince a clear legislative intention that applications for relief based on a breach of an overarching obligation must be made prior to final orders being made in the relevant litigation, subject to the power of the Court to grant an extension where the person making the application was not aware of the breach prior to the making of final orders. Although ss 30 and 31 are, in terms, confined to an application for relief under s 29 of the CPA and do not apply to an application under r 63.23, the reliance on a breach of an overarching obligation necessarily requires that consideration be given to those sections in the exercise of the discretion under r 63.23.[85]

[84]Ibid, at [104] (Whelan, Priest and Kyrou JJA).

[85]Ibid, at [106] (Whelan, Priest and Kyrou JJA).

In my view, for the reasons given earlier, no costs are recoverable by or on behalf of Mr Findlay in respect of this phase of the litigation, and no costs have been awarded against him. To the extent that his solicitor now belatedly seeks to make a fresh ‘application’ for an order for costs under r 63.23 against TDE, whether by reference to breaches of the Civil Procedure Act 2010, or otherwise, I refuse that application. Mr Findlay was not the successful applicant and, as I have found, once Ms Talacko indicated her willingness to represent the estate, there was no necessity for him to be involved and incur any costs. To the extent that he did so, Mr Findlay incurred them of his own motion, they are not recoverable, and no party or lawyer should be ordered to pay them.

Furthermore, Mr Findlay and his solicitor were well aware, prior to the making of the orders on 4 February 2016 for substantive relief, that any applications for costs, whether under the Rules or the Civil Procedure Act 2010, or otherwise, were required to be in place by that date. The other parties approached the drafting and filing of their respective submissions as to orders for costs on that basis, and have negotiated and reached positions with respect to one another accordingly. Having done so, it is manifestly unfair for them to now face and have to deal with fresh “applications” at this late stage. Accordingly, I do not propose to entertain them. In this regard, I note that recently Mr Guss also sought to file a further outline of submissions on behalf of Mr Findlay dated 11 October 2017, in which Mr Findlay (or his estate) seeks costs orders as against Mr Howells ‘under s 29 of the CPA and/or the Court’s inherent powers’ as a result of his acceptance of responsibility for the late disclosure in respect of the third certificate. No leave was given to permit that submission to be filed, and the solicitors for Mr Howells have objected to the Court receiving and considering it. To the extent that this correspondence might be said to constitute the making of another belated “application” for costs, I do not propose to entertain it.

The application made by the executors of Mr Findlay’s estate was expressed to be for the purposes of pursuing the relief by way of costs sought in Mr Findlay’s summonses dated 8 December 2014, 8 May 2015 and 21 September 2015 and the notice of appeal dated 18 February 2015. Since issuing that application, in submissions filed by their solicitor, the executors have enlarged the scope of the relief sought by the estate by tacking on an alternative or additional claim against each of TDE and Mr Howells, neither of which claims had been made by Mr Findlay. As will be apparent from these reasons, none of the claims for costs made by or on behalf of Mr Findlay have been allowed, nor have any of the claims for costs that were made against him (or his estate). In those circumstances, it is not necessary for the Court to determine the application for substitution or joinder made by the executors. Accordingly, the summons should be dismissed with no order as to costs.

The submissions filed on behalf of the Prothonotary

For completeness, I record that the solicitor for the Prothonotary had previously informed the Court by letters dated 6 November 2014 and 11 December 2014 that the Prothonotary did not intend to take an active role in this proceeding and would abide the decision of the Court. A short written submission was filed on 29 January 2016 referring to the fact that the Prothonotary is an officer of the Court appointed under s 106(a) of the Supreme Court Act 1986 (Vic). A further short written submission was filed on 28 August 2017 in which the solicitor for the Prothonotary noted that to date no party has filed any submissions, affidavit or other document indicating an intention to seek costs against the Prothonotary. That remains the position.

Summary of conclusions

As noted earlier in these reasons, this matter returned to Court for the determination of five principal matters, namely:

A.Concerning the ‘first certificate’ and the ‘second certificate’ issued by the Prothonotary:

(1) issues as to costs in relation to summonses dated 8 May 2015, filed by Ms Talacko and the late Mr Findlay respectively;

(2) issues as to costs in relation to notices of appeal filed on 18 February 2015 by Ms Talacko and on 25 February 2015 by Mr Findlay respectively;

(3) a summons dated 25 January 2016, filed by Ms Talacko, seeking relief against each of Mr Howells, barrister, and TDE, solicitors, in relation to alleged contraventions of the Civil Procedure Act 2010 (Vic).

B Concerning the ‘third certificate’ issued by the Prothonotary:

(1) issues as to costs in relation to a summons dated 23 September 2015 filed by Ms Talacko and a summons dated 21 September 2015 filed by Mr Findlay; and

(2) a summons dated 29 January 2016, filed by Ms Talacko, seeking relief against Mr Howells in relation to alleged contraventions of the Civil Procedure Act 2010 (Vic).

Separately, by summons dated 11 August 2017, the executors of the estate of Mr Findlay, Ms Findlay and Ms Rigg, sought orders adding them as parties, or alternatively substituting themselves as parties in lieu of Mr Findlay, pursuant to rules 9.06 and/or 9.09 of the Rules in order to represent his estate for the purposes of pursuing the relief by way of costs sought in the summonses filed by him.

For the reasons outlined above, in respect of these issues, I have found as follows.

A.Concerning the ‘first certificate’ and ‘second certificate’ issued by the Prothonotary:
(1)In respect of the 8 May 2015 summonses:
(a)Ms Talacko is entitled to recover her costs. Those costs, including reserved costs, are payable by the 2^nd to 5^th plaintiffs on a standard basis, to be taxed in default of agreement (at [65]).
(b)Mr Findlay is not entitled to recover his costs from any person or party (at [83]).

(2)In respect of the notices of appeal, there should be no order as to costs save in respect of Ms Talacko’s Civil Procedure Act summons (at [104]).
(3)In respect of Ms Talacko’s summons dated 25 January 2016 seeking relief under the Civil Procedure Act:
(a)the following work undertaken by Ms Talacko was thrown away or rendered otiose by TDE’s and Mr Howells’ failure to disclose, in a timely way, the application for and existence of the second certificate:
i.the preparation of notices of appeal and accompanying documents, and related attendances;
ii.the affidavit of Jonathan Guy Joseph sworn 5 May 2015 (except the section headed ‘The Amended Prothonotary’s certificate’) and related attendances;
iii.the affidavit of Jonathan Guy Joseph sworn 7 May 2015 (except the section headed ‘Common book of authorities and other materials’) and related attendances;
iv.hearing of the 2^nd to 5^th plaintiffs’ application to adjourn the appeal on 7 May 2015, and related attendances; and
v.hearing on 8 May 2015 to regularise the conduct of the proceeding, and related attendances (at [36]–[37]).

(b)Ms Talacko is entitled to recover her costs and disbursements of performing those items of work. Those costs, including reserved costs, are payable by TDE and Mr Howells on an indemnity basis, to be taxed and quantified by the Costs Court in default of agreement (at [36]–[37]).

B.Concerning the ‘third certificate’ issued by the Prothonotary:
(4)In respect of Ms Talacko’s 23 September 2015 summons and Mr Findlay’s 21 September 2015 summons respectively:
(a)Ms Talacko no longer seeks any costs order against the 1^st plaintiff (at [109]); and
(b)there should be no order as to costs in respect of Mr Findlay’s 21 September 2015 summons (at [116]).

(5)In respect of Ms Talacko’s summons dated 29 January 2016 seeking relief under the Civil Procedure Act:
(a)the following work undertaken by Ms Talacko was thrown away or rendered otiose by Mr Howells’ failure to disclose, in a timely way, the existence of the third certificate:
i.preparation of and filing the 23 September 2015 summons issued by Ms Talacko, and related attendances (at [57]); and
ii.hearing on 22 September 2015 on the return of the 21 September 2015 summons (which was effectively replaced by the 23 September 2015 summons) and related attendances (at [61]).

(b)Ms Talacko is entitled to her costs and disbursements of performing those items of work. Those costs, including reserved costs, are payable by Mr Howells on an indemnity basis, to be taxed and quantified by the Costs Court in default of agreement (at [57] and [61]).

None of the claims for costs made by or on behalf of Mr Findlay have been allowed, nor have any of the claims for costs that were made against him (or his estate). Therefore, it is not necessary for the Court to determine the application for substitution or joinder made by the executors of the estate of Mr Findlay. Accordingly, the summons should be dismissed with no order as to costs (at [134]).

In due course, I will hear the parties on the precise form of the orders to be made to give effect to these reasons.

SCHEDULE OF PARTIES

S CI 1998 07393

BETWEEN:

JAN TALACKO (as Executor of the Estate of HELENA MARIE TALACKO) First Plaintiff

ALEXANDRA BENNETT Second Plaintiff

MARTIN TALACKO Third Plaintiff

ROWENA TALACKO Fourth Plaintiff

MARGARET HELEN BEATRICE TALACKO Fifth Plaintiff

- and -

JAN EMIL TALACKO Defendant

See also [2017] HCATrans 267.

Item (a):	Preparation of and filing Ms Talacko’s 26 August 2015 summons, and related attendances
Item (b):	preparation of the affidavit of Jonathan Guy Joseph sworn on 28 August 2015, and related attendances
Item (c):	hearing on 3 September 2015 on the return of the 26 August 2015 summons, and related attendances

Item (e):	preparation of and filing Ms Talacko’s 21 September 2015 summons and related attendances
Item (h)	preparation of and filing Ms Talacko’s 23 September 2015 summons and related attendances

S CI 1998 07393
BETWEEN:
JAN TALACKO (as Executor of the Estate of HELENA MARIE TALACKO)	First Plaintiff
ALEXANDRA BENNETT	Second Plaintiff
MARTIN TALACKO	Third Plaintiff
ROWENA TALACKO	Fourth Plaintiff
MARGARET HELEN BEATRICE TALACKO	Fifth Plaintiff
- and -
JAN EMIL TALACKO	Defendant

[2017] VSC 804

22 December 2017