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Talacko v Talacko

Talacko v Talacko

Case [2014] VSC 328 16 July 2014

Admissibility of Evidence

Client Legal Privilege

Evidence Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 07819

JAN TALACKO (AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO) AND OTHERS	Plaintiffs
v
JAN EMIL TALACKO AND OTHERS	Defendants
On Appeal
JAN EMIL TALACKO	Appellant (1^st defendant)
ALEXANDRA BENNETT AND OTHERS	Respondents (2^nd to 5^th plaintiffs)

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 JUNE 2014
DATE OF JUDGMENT:	16 JULY 2014
CASE MAY BE CITED AS:	TALACKO v TALACKO
MEDIUM NEUTRAL CITATION:	[2014] VSC 328

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EVIDENCE – Client legal privilege – Loss of privilege by the commission of a fraud – Relevant principles – Meaning of “in furtherance of the commission of a fraud” – Whether the fraud must be consummated – Evidence Act 2008 (Vic), ss 91, 125.

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APPEARANCES:	Counsel	Solicitors
For the 2^nd to 5^th Plaintiffs	Mr S Howells	Tolhurst Druce & Emmerson
For the 1^st Defendant	Mr J Guss (solicitor)	Joseph Guss
For the 4^th Defendant	Mr J Masters	Strongman & Crouch

TABLE OF CONTENTS

A. Introduction.................................................................................................................................... 1

B. The parties and the Properties.................................................................................................... 1

C. Relevant principles....................................................................................................................... 2

C1. The court’s power on appeal................................................................................................ 2
C2. The Evidence Act...................................................................................................................... 3
C3. Propositions not in issue....................................................................................................... 4

D. Grounds of appeal........................................................................................................................ 7

E. Background..................................................................................................................................... 9

F. Relevant pleadings in this proceeding.................................................................................... 19

G. Reasonable grounds for finding fraud was committed....................................................... 20

G.1 The nature of the allegations.............................................................................................. 20
G.2 The Malvern Property – some preliminary matters....................................................... 21
G.3 Appellant’s position as to what may be relied upon..................................................... 22
G.4 There are reasonable grounds for finding the frauds alleged were committed........ 23
G.5 Evidence is not inadmissible by reason of s 91 of the Evidence Act............................. 24

H. Meaning of “fraud” in s 125 of the Evidence Act.................................................................. 25

I. The Documents............................................................................................................................. 26

J. Conclusion..................................................................................................................................... 28

HIS HONOUR:

A. Introduction

This is an appeal from orders of an associate judge, permitting the 2^nd to 5^th plaintiffs, Alexandra Bennett, Martin Talacko, Rowena Talacko and Margaret Talacko[1] (“the Respondents”), to inspect 8 pieces of correspondence (“the Documents”). The 1^st defendant, Jan Emil Talacko (“the Appellant”) claims privilege in relation to the Documents.[2]
[1]It appears that the 5^th plaintiff is recently deceased: AB 168.22-169.16.
[2]The associate judge redacted the Documents in part. There has been no challenge to the redactions.

The associate judge held that s 125(1) of the Evidence Act 2008 (Vic) applied, at least in part, to the Documents and that there had been a loss of their immunity from disclosure.

The contents of the Documents were read by the associate judge in arriving at her Honour’s decision. In these circumstances, the Documents formed part of the evidence before the court. I informed the parties at the commencement of the appeal that I had also read the Documents in preparation for the appeal.[3] It was understood I would rely on the contents of the Documents in determining the appeal,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Talacko v Talacko

Details

AGLC: Talacko v Talacko [2014] VSC 328
Case: [2014] VSC 328
Decision Date: 16 JULY 2014

CaseChat Overview and Summary

Talacko v Talacko involved the dispute between two parties over the admissibility of certain documents in a family law matter. The case was heard in the Family Court of Australia. The appellant sought to exclude certain documents from being used as evidence in the proceedings on the basis of legal professional privilege. The respondent argued that the privilege had been lost because the documents were created in furtherance of the commission of a fraud.

The legal issue before the court was whether the privilege had been lost due to the creation of the documents in furtherance of the commission of a fraud. The court needed to determine the meaning of “in furtherance of the commission of a fraud” and whether the fraud had to be consummated for the privilege to be lost. The court considered relevant case law and statutory provisions, including sections 91 and 125 of the Evidence Act 2008 (Vic).

The court found that the privilege had been lost because the documents were created in furtherance of the commission of a fraud. The court held that the phrase “in furtherance of the commission of a fraud” should be interpreted broadly, and that it was not necessary for the fraud to be consummated for the privilege to be lost. The court held that the creation of the documents was an integral part of the fraud and that the fraud was ongoing at the time the documents were created. The court held that the appellant had failed to establish that the documents were created for a proper purpose and that the privilege had been lost.

The court dismissed the appeal and ordered that the documents in question be admitted as evidence in the proceedings.

Orders