Talacko v Talacko
[2009] VSC 385
•10 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7819 of 2009
| HELENA MARIE TALACKO, ALEXANDRA BENNETT, MARTIN TALACKO, ROWENA TALACKO AND MARGARET HELEN TALACKO | Plaintiffs |
| v | |
| JAN EMIL TALACKO, DAVID TALACKO, PAUL ANTHONY TALACKO AND JUDITH GAIL TALACKO | Defendants |
---
JUDGE: | Habersberger J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2009 | |
DATE OF JUDGMENT: | 10 September 2009 | |
CASE MAY BE CITED AS: | Talacko v Talacko | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 385 | |
---
Contempt of Court – Two alleged breaches of order – Whether required acts to be carried out personally by first defendant or whether they could be performed by his solicitor – Whether order clear and unambiguous - Supreme Court (General Civil Procedure) Rules 2005, r 1.18.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr SJ Howells | Holding Redlich |
| For the First Defendant | Mr DJ Williams | Findlay Arthur Phillips |
| For the Second, Third and Fourth Defendants | No Appearance |
HIS HONOUR:
Introduction
By a summons filed on 14 August 2009 and returnable on 20 August 2009, the plaintiffs sought, pursuant to r 75.06(2) of the Supreme Court (General Civil Procedure)Rules 2005 (“the Rules”), to have the first defendant, Jan Emil Talacko, dealt with for contempt for a breach of paragraph 3 of an Order of Kyrou J made on 10 August 2009 and for a breach of paragraph 4 of the same Order (“the Order”). This summons was adjourned to the Practice Court on 26 August 2009. Also returnable on that day was another summons alleging contempt against Mr Talacko in a related proceeding (No 7393 of 1998) (“the 1998 proceeding”). Judgment on the summons in the 1998 proceeding,[1] which was heard by me on 1 September 2009 following an adjournment to allow it to be amended, will be handed down at the same time as this judgment.
[1]Talacko v Talacko [2009] VSC 387.
The relevant paragraphs of the Order read as follows:
3.By 4.15 pm on 12 August 2009, the Firstnamed Defendant complete and sign three sets of the cancellation of deed and withdrawal of application forms exhibited to the affidavit of Howard Rapke sworn on 23 July 2009 and file and serve one set on the Cadastral Registrar in Prague and the solicitors for the plaintiffs, and forward one set to the Secondnamed Defendant and one set to the thirdnamed Defendant requesting that they complete and sign the relevant set and forward that set to the Cadastral Registrar in Prague. For the purposes of this paragraph 3, the set that is served on the solicitors for the Plaintiffs shall be a copy of the set filed with the Cadastral Registrar in Prague.
4.By 4.15 pm on 12 August 2009, the Firstnamed Defendant, Jan Emil Talacko:
(a)communicate by telephone with the Second and Thirdnamed Defendants and read out to them this Order; and
(b)file and serve an affidavit verifying compliance with paragraph 4 of this Order.
The second and third defendants are Mr Talacko’s sons, David Talacko and Paul Anthony Talacko.
The Alleged Contempt
The two alleged breaches of the Order were as follows. First, that the first defendant:
personally did fail to forward to the Second and Thirdnamed Defendants the cancellation of deed and withdrawal of application forms exhibited to the affidavit of Howard Rapke sworn on 23 July 2009 and request that they complete and sign the relevant documents and forward them to the Cadastral Registrar in Prague.
And secondly, that the first defendant:
personally did fail to communicate by telephone with the Second and Thirdnamed Defendants and read out to them the Orders made by the Honourable Justice Kyrou on 10 August 2009.
Background
The history of this protracted dispute is set out in some detail in the judgment of Kyrou J given on 21 August 2009 in this proceeding[2] and the following summary is drawn from that judgment. It is sufficient for present purposes to note that interests in a number of properties in the Czech Republic, Slovakia and Germany (“the Properties”) were transferred to Mr Talacko under the restitution laws passed in those countries after the fall of the Communist regimes in what were then Czechoslovakia and East Germany. The 1998 proceeding was commenced by the plaintiffs against Mr Talacko alleging a breach by him of an agreement made in 1990 with his sister and brother to hold his interests in the Properties on trust for the three siblings in equal shares. The dispute was settled by the parties in 2001, but the plaintiffs reinstated the 1998 proceeding in 2005 alleging that Mr Talacko had breached the terms of the settlement. In 2008, Osborn J held that Mr Talacko had breached the terms.[3] Subject to resolution of some outstanding defences, Mr Talacko is liable to pay equitable compensation to the plaintiffs in accordance with the terms of settlement. In March 2009, the trial of these remaining issues in the 1998 proceeding was set down for hearing commencing on 5 October 2009.
[2]Talacko v Talacko [2009] VSC 349.
[3]Talacko v Talacko [2008] VSC 128.
In an affidavit sworn on 9 September 2008, Mr Talacko stated that:
My sole intention with respect to the properties is to continue to rehabilitate and modernise them to a comparable state to which they were prior to them being forcibly taken from my parents. I have no intention of selling, disposing, encumbering or in any other way dealing with the properties other than in the normal course of letting some of them out on normal commercial terms where that is permitted.
Yet in May 2009 Mr Talacko purported to transfer his interests in the Properties in the Czech Republic to his sons, David and Paul Talacko, by way of gift. Those sons were two of his four children. They lived overseas in the Czech Republic or the United Kingdom, whereas the remaining son and a daughter lived in Australia. By the time the plaintiffs learned what had happened, some of the transfers had been registered, whilst the registration of other transfers was still pending. There was evidence that once lodged the transfers could not be withdrawn without the consent of both transferor and transferees.
On 11 June 2009, Kyrou J made an order in the 1998 proceeding restraining Mr Talacko from taking any further step by himself or by his employees, agents or attorneys from selling, transferring, donating or otherwise dealing with any of the Properties, and directing him to immediately take all such steps as he was able to withdraw any applications for transfers and any documents relating to applications or transactions that he, his employees, agents or attorneys had lodged with any Real Estate Registry in the Czech Republic in respect of any of the Properties. Despite this order, by a letter dated 17 June 2009 Mr Talacko’s Czech attorney, Daniela Burešová, provided information to the Cadastral Registry in Prague that the Registry had requested for the purpose of progressing some of the transfers to David and Paul Talacko.
On 13 July 2009 the plaintiffs filed a summons seeking to have Mr Talacko dealt with for contempt on the grounds that Dr Burešová’s letter had breached the order made by Kyrou J on 11 June 2009 and that Mr Talacko had not provided copies of taxation documents in accordance with an order made on 23 June 2009. As there was evidence which suggested that Mr Talacko was about to leave the jurisdiction, Bongiorno J issued a warrant for his arrest. After a hearing that evening, he was remanded in custody. On 14 July 2009, Byrne J dismissed the summons filed the previous day because the order of 11 June 2009 did not contain an indorsement pursuant to r.66.10(3) of the Rules. However, later that day, on a fresh summons, Byrne J made an order which, as varied on 15 July 2009, prevented Mr Talacko from leaving Victoria or from attending any point of international departure and placed restrictions on Mr Talacko’s access to a passport. This injunction remained in force at the time of the hearing before me. In an affidavit sworn on 15 July 2009, Mr Talacko said that Dr Burešová had sent the letter of 17 June 2009 without his instructions.
On 17 July 2009, the plaintiffs commenced this proceeding, naming David Talacko and Paul Talacko as the second and third defendants. The causes of action against them include inducing their father to breach the terms of settlement, causing loss by unlawful means and conspiracy, and knowing participation in Mr Talacko’s breach of trust and breach of fiduciary duty. Since that day, orders have been made in one form or another restraining David Talacko and Paul Talacko from taking any further steps by themselves or by their employees, agents or attorneys for the purpose of, or in furtherance of, the registration to them of any of the Properties. Such orders were repeated in the Order made on 10 August 2009. Included in that Order were what were called Mareva-type orders against both the second and third defendants. Amongst other things, these orders required each of the second and third defendants by 14 August 2009 to send letters to the Cadastral Registrar in Prague requesting that no further steps be taken to register transfers of the Properties; restrained each of them from selling, transferring, donating or otherwise dealing with any of the Properties; and required each of them by 19 August 2009 to complete, sign and forward the cancellation documents relating to the Properties sent to them by their father. Orders for substituted service on David and Paul Talacko were also included in the Order, Kyrou J being satisfied that they had been avoiding service.
The Evidence
Set out in an affidavit by the first defendant and in an affidavit by his solicitor, Michael Witt of Findlay Arthur Phillips Pty Ltd, both sworn on 12 August 2009, were the relevant steps taken by or on behalf of the first defendant in purported compliance with the Order made on 10 August 2009. Mr Witt deposed that in his presence at 312 Glenferrie Road, Malvern at approximately 5.30 pm on 11 August 2009 the first defendant signed three sets of the cancellation of deed and withdrawal of application forms exhibited to the affidavit of Howard Rapke sworn on 23 July 2009 (“the cancellation documents”). Mr Witt then deposed that on 12 August 2009:
(a)at approximately 11.28 am he faxed to the Cadastral Registrar in Prague a letter from his firm enclosing one set of the cancellation documents signed by the first defendant;
(b)at approximately 12.05 pm he forwarded by email to Paul Talacko a letter from his firm enclosing one set of the cancellation documents signed by the first defendant;
(c)at approximately 12.06 pm he forwarded by email to David Talacko a letter from his firm enclosing one set of the cancellation documents signed by the first defendant; and
(d)at approximately 1.45 pm he forwarded the letters and the cancellation documents to the respective addressees “by forwarding them by pre-paid airmail from the post box on Toorak Road, South Yarra”.
The emails and letters to Paul Talacko and to David Talacko were relevantly in the same terms. The emails read:
Attached are documents signed by your father. These documents have been signed by him pursuant to the court order that has been emailed to you and which was read to you last night. Please complete and sign these documents and forward them to the Cadastral Registrar in Prague.
The letters read:
As you are aware, we act for your father, Jan Email Talacko.
Our client has been ordered by the Supreme Court of Victoria to sign and forward to you certain documents. Pursuant to that order we enclose the following … [the cancellation documents were listed].
We request that you complete and sign these documents and forward them to the Cadastral Registrar in Prague.
Mr Witt also deposed that at approximately 6.00 pm on 11 August 2009 he spoke by telephone to both Paul and David Talacko and read out to them the Order in its entirety. Mr Witt explained the circumstances of this communication. He said that the first defendant’s daughter, Nicole Talacko, told him that she had arranged for Paul and David Talacko to be together for the purposes of receiving the telephone call. Mr Witt said that shortly after this, Ms Talacko handed him a telephone and told him that Paul and David Talacko were on the other end of the call. He said that he confirmed that Paul and David Talacko were listening, both before and after he read out the Order to them.
In his affidavit, the first defendant deposed that at approximately 6.00 pm on 11 August 2009 he was present when Mr Witt communicated with Paul and David Talacko by telephone and read out to them the Order.
The first defendant also deposed that at 6.25 pm on 11 August 2009 he forwarded to Paul Talacko and David Talacko by email copies of the documents required by paragraph 5 of the Order to be sent to them. That paragraph provided that:
5.By 4.15 pm on 12 August 2009, the Firstnamed Defendant, Jan Emil Talacko:
(a)send to the Second and Thirdnamed Defendants by email or fax copies of:
(i)the writ in this proceeding;
(ii)the amended statement of claim in this proceeding;
(iii)the Orders dated 17 July 2009, 24 July 2009 and today in this proceeding; and
(iv)the affidavit of Howard Rapke sworn on 23 July 2009 and the exhibits to that affidavit; and
(b)file and serve an affidavit verifying compliance with paragraph 5 of this Order.
The email from Mr Talacko read as follows:
Dear Paul and David,
Please find attached a document I have been ordered to send you by the Victorian Supreme Court in Australia. I have been told that if I don’t send these documents I could go to prison.
Following receipt of the summons for contempt both Mr Witt and the first defendant filed further affidavits. In an affidavit sworn on 19 August 2009, Mr Witt referred to his earlier affidavit, in which he had deposed to having read the Order and to having emailed and posted the cancellation documents, and continued:
I say that the First Defendant’s decision that I should do this instead of him was taken on my advice and reflected my interpretation of the Orders in that I did not (and still do not) consider that the Orders required that these steps (or any others required by the Orders) be taken personally by the First Defendant, but that rather so long as each of these steps were completed within the time prescribed by the Orders that this would be sufficient. I considered it desirable that I should take those steps as the First Defendant’s representative because the Plaintiffs have on several occasions, through their counsel, indicated to the Court that they generally do not accept the First Defendant’s word on any matter, even when given on oath. I therefore recommended to the First Defendant that he instruct me to take those steps on his behalf, and to swear an affidavit as to having done so, since the Plaintiffs and the Court would then have first hand evidence from an officer of the Court as to the taking of those steps.
Mr Witt then deposed that on 17 August 2009 the first defendant attended his office and in his presence signed three further sets of the cancellation documents and letters to each of the second defendant, the third defendant, the Cadastral Registrar in Prague and the plaintiffs’ solicitors and that he gave these documents and letters to the first defendant in four pre-addressed, stamped envelopes and advised him to post them all that afternoon. Mr Witt said that he had been informed by the first defendant and believed that he had posted all of the documents in question at approximately 5.04 pm from the post box on Llaneast Street, Malvern. The letters to Paul Talacko and to David Talacko were relevantly in the same terms. They read:
I have been ordered by the Supreme Court of Victoria, Australia to sign and forward to you certain documents. Pursuant to that order I enclose the following:
… [the cancellation documents were listed]
I request that you complete and sign these documents and forward them to the Cadastral Registrar in Prague.
These are the same documents as were sent to you by my solicitor last week however it has been suggested that I should have posted these to you personally rather than by my solicitor so I am sending them to you again myself.
Mr Witt also deposed that on 18 August 2009 he attended on the first defendant at 312 Glenferrie Road, Malvern and that at approximately 5.30 pm he:
witnessed the First Defendant telephone the Second and Third Defendant and then read out the Orders.
In an affidavit sworn on 24 August 2009, the first defendant confirmed what Mr Witt had said about the further steps taken in respect of paragraphs 3 and 4 of the Order. He also said:
3.The reason that I did not personally telephone the Second and Third Defendants to read the orders out to them was that I had been advised by Mr Witt that it was not necessary that I do this personally and that provided it was done within the time stated in the Orders it would be sufficient if he did it on my behalf. He recommended that I give him instructions to take these steps on my behalf, in order to avoid any doubt being raised by the Plaintiffs about whether it had been done. In those circumstances, and having regard to the repeated and unfounded attacks on my honesty by counsel for the Plaintiffs, Mr Howells, I felt that it would be better if Mr Witt as an officer of the Court read out the Orders to the Second and Third Defendants so that there could be no suggestion that I had not done this or that I had not done this properly. Had I been advised that it was necessary for me to personally attend to this task I would have done so.
4.Further, I say that the reason that I did not personally forward the cancellation documents to the Second Defendant, the Third Defendant, the Cadastral Registrar in Prague or the Plaintiffs’ solicitors was also that I had been advised by Mr Witt that it was not necessary that I do this personally and that provided it was done within the time stated in the Orders it would be sufficient if he did it on my behalf. Again, I believed that by Mr Witt as an officer of the Court completing this task, and swearing an affidavit confirming that he had done so, there could be no doubt that it had been done.
5.Had I been advised that it was necessary for me to personally attend to these tasks I would certainly have done so within the time prescribed by the Orders. I cannot understand how the Plaintiffs could be disadvantaged in any way by those steps having been taken by Mr Witt rather than by myself.
Consideration of the Issues
The first issue is whether, as maintained by the plaintiffs, the first defendant was required to take certain of the steps set out in paragraphs 3 and 4 of the Order made on 10 August 2009 personally. Mr Williams of counsel, who appeared for the first defendant, submitted that the Order did not require the first defendant to do so personally, alternatively that it was unclear whether or not he had to do so. He submitted that it was well established that a charge of contempt based on an alleged breach of an order cannot succeed unless the relevant terms of the order are clear and unambiguous. The construction suggested by the party complaining about the failure to comply has to be the only construction open. Any ambiguity was to be read against the party seeking to enforce compliance, given the quasi‑criminal nature of a charge of contempt which must be proved beyond reasonable doubt.[4]
[4]Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 49 (Deane J); Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ), 548 (McHugh J).
Counsel referred to the decision of Australian Consolidated Press Ltd v Morgan,[5] where Owen J cited with approval and applied the following two statements of general principle.[6] First, in Iberian Trust Ltd v Founders Trust and Investment Co, Luxmoore J said:
[5](1965) 112 CLR 483.
[6](1965) 112 CLR 483, 515-516.
If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done.[7]
Secondly, in Redwing Ltd v Redwing Forest Products Ltd, Jenkins J said:
… in my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.[8]
Windeyer J agreed with Owen J on this point,[9] but Barwick CJ did not.[10] For many years now, judges of this Court have consistently applied the principle that for a contempt to be established the terms of the order or undertaking have to be clear and unambiguous.[11]
[7][1932] 2 KB 87, 95.
[8](1947) 177 LT 387, 390.
[9](1965) 112 CLR 483, 515-516.
[10](1965) 112 CLR 483, 492.
[11]See, for example, McNair Anderson and Associates Pty Ltd v Hinch [1985] VRT 309, 312 (Southwell J); Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [30] (Gillard J); Livingspring Pty Ltd v Ng [2007] VSC 9, [24] (Cavanough J); Scott v Evia Pty Ltd [2007] VSC 15, [36], (Dodds‑Streeton J); and Chan v Chen (No. 2) [2007] VSC 24, [22] (Kaye J).
Counsel also referred to Australian Competition and Consumer Commission v Collings Construction Co Pty Ltd,[12] where Bainton J held that if there be any ambiguity, uncertainty or want of clarity in an order it should be construed contra proferentum against the party seeking to enforce the order.
[12]Unreported, SCNSW 2 July 1997, BC 9702850 at 15.
Mr Howells of counsel, who appeared for the plaintiffs, submitted that the relevant paragraphs of the Order were clear and unambiguous. He submitted that paragraph 3 required the first defendant to write personally to his sons, the second and third defendants, making a request of them and that paragraph 4 required him to communicate personally with his sons and read out the Order to them. Counsel submitted that “the syntax” of the relevant paragraphs of the Order, particularly the requirement that the first defendant “read out” the Order was only consistent with those things being done by him personally.
Although both counsel initially sought to refer to the transcript of the hearing before Kyrou J on 10 August 2009 in support of their submissions for and against a finding of contempt, on reflection they agreed that the proper approach was to concentrate on the words of the Order itself rather than looking at what might have been said during argument before the Order was made. I agree that it is not permissible to go beyond the Order itself to aid in its construction. As Southwell J said in McNair Anderson Associates Pty Ltd v Hinch:[13]
Mr Winneke Q.C., who appeared with Mr Hayne for the plaintiff, submitted that it was not open to the Court to go behind the order, either by reference to the transcript or to the reasons for judgment. He referred to Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, at p.503 where Windeyer J said: ‘Those who give undertakings to a court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it in that sense’.
In my opinion, no different principle can be applied where injunctions, rather than undertakings, are under consideration.
For my part I would have thought it would seldom be permissible in proceedings for contempt to go behind the order and to examine the reasons for judgment as an aid to construction of the order. Borrie and Lowe in Law of Contempt, 2nd ed., p. 395 says: ‘It is clearly established that a person will not be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous’. Accordingly, one must first look at the order and decide whether it is clear and unambiguous in its terms. If it is, then it is unnecessary to look beyond it in order to aid construction: if it is not clear and unambiguous in its terms, a breach of it could not be proved.
[13][1985] VR 309, 311-312.
Mr Howells referred to r 1.18 of the Rules which reads:
1.18 Power to act by solicitor
Unless the context or subject matter otherwise requires, any act, matter or thing which under the Act or these Rules or otherwise by law is required or permitted to be done by a party may be done by the party’s solicitor.
He submitted that the context or subject matter of the Order made it clear which parts the first defendant had to do personally and which could be performed by the solicitor.
Mr Howells submitted that what the Court wanted to achieve was to have the imprimatur of the first defendant, the father, telling his sons that for the first time he was taking the Court’s Order seriously and that he was asking them to comply with it. The father son relationship was important. Having the solicitor do it was not the same. He further submitted that the Court was concerned to ensure that the second and third defendants became aware of the existence and terms of the Order and the intent of the Order.
On the other hand, Mr Williams submitted that r.1.18 stood in the way of the plaintiffs’ success in this application. He submitted that, as the prima facie position was that a party might act through a solicitor, unless it was clearly spelled out in the Order or was obvious from the context or subject matter, reasonable minds could differ about what was required to be done by a person and what could be done by the solicitor.
Mr Williams pointed out that the request to the sons did not have to be made orally. It was contained in paragraph 3 of the Order, which was concerned about completion and forwarding of the cancellation documents. Paragraph 4 dealt with the reading out of the Order to the second and third defendants. He submitted that this made it even less likely that Mr Talacko was being ordered to make the request personally. He also submitted that the purpose of the request in the Order was to identify the documents which the second and third defendants were being asked to sign to give effect to the Order. Communication of the Order itself was to be performed in a number of ways – first, by being read out (paragraph 4), then by being emailed or faxed (paragraph 5), and then by being posted (paragraphs 15 and 16). It was submitted that there was no need for any of these steps to be carried out personally by Mr Talacko.
Mr Williams further submitted that the plaintiffs’ case presupposed that the only way that the Order could be read was as if the word “personally” was there before the word “forward” and the word “requesting” in paragraph 3 and before the word “communicate” and the word “read” in paragraph 4 of the Order. Yet, he pointed out, the only way that the drafter of the summons felt that the concept could be adequately conveyed was to include the word “personally” in the summons. Otherwise, the essence of the complaint would not be clear. But, counsel submitted, why should the Order be read in this way? If the word “personally” was required in the summons, similarly it was required in the Order. Without that word, the order was ambiguous.
Mr Howells also submitted that the first defendant’s explanation for not complying with the Order should not be accepted. He asked rhetorically, if the first defendant believed that Mr Witt should do all of what was required by the Order, why did he send his email? There was no explanation of why Mr Talacko carried out this task, when one might have expected that it would be performed by the solicitor, particularly given the latter’s view that it was desirable to have evidence from an officer of the Court as to the taking of the required steps. In my opinion, it would have been possible to arrange for Mr Talacko to personally make the request to his sons and personally read out the Order to them in such a way that Mr Witt could still have given the evidence that the required steps had been taken. But this criticism is really irrelevant to the question of whether the first defendant was guilty of contempt for not personally carrying out two specified acts.
Mr Howells submitted that the fact that the first defendant said in his email that he was attaching documents that “I have been ordered to send you” showed that he understood that this was to be done by him. Moreover, Mr Howells submitted that the tenor of that email, sent at 6.25 pm on 11 August 2009, was to countermand the request to complete, sign and forward the cancellation documents which was made by Mr Witt on behalf of the first defendant by email and letter at approximately 12.00 pm the next day. The first defendant’s reference to being sent to prison was, it was submitted, a coded indication that he really did not seek their compliance.
I do not agree. Whilst Mr Talacko’s email could be read that way, equally, in my opinion, the first defendant’s reference to being sent to prison could have been an indication to his sons just how serious the situation was and that, accordingly, he did want their co‑operation. Mr Talacko’s email of 11 August 2009 being equivocal, I cannot be satisfied beyond reasonable doubt that he was countermanding the request to his sons made by Mr Witt on his behalf to complete, sign and forward the cancellation documents.
Mr Howells also criticised the cursory account of the reading out of the Order in purported compliance with paragraph 4 of that Order. There was no evidence of whether the sons said anything in response to having the Order read out to them or whether they indicated that they had understood the Order. However, it is not necessary to pursue this aspect further, in my opinion, because the clear basis of the allegations of contempt was that the first defendant had not personally done what he was required to do, not that the solicitor may not have carried out those tasks as carefully as he might have.
Finally, counsel for the plaintiffs submitted that the fact that the first defendant may have acted on legal advice did not excuse his failure to comply with the Order. This was correctly not disputed by Mr Williams. In Mileage Conference Group v The Tyre Manufacturers Conference Ltd’s Agreement,[14] a substantial fine was imposed for contempt by breach of an undertaking which was not merely non‑contumacious, but was committed reasonably on legal advice. This decision was approved by the High Court of Australia in AMIEU v Mudginberri Station Pty Ltd.[15] Nevertheless, it is relevant, in my opinion, to the question of whether or not paragraphs 3 and 4 of the Order were clear and unambiguous, that a member of the legal profession has in good faith construed the Order as not requiring Mr Talacko to carry out the acts personally.
[14][1966] 1 WLR 1137.
[15](1986) 161 CLR 98, 112 (Gibbs CJ, Mason, Wilson and Deane JJ).
Decision
Paragraphs 3 and 4 of the Order required a number of acts to be carried out by the first defendant. Pursuant to paragraph 3, he had to:
(a) complete
(b) and sign three sets of the cancellation documents;
(c) file[16]
[16]I would query whether the Order meant to say “file and serve” rather than just “file.”
(d) and serve one set on the Cadastral Registrar in Prague;
(e) file[17]
[17]Ibid.
(f) and serve a copy of that set on the solicitors for the plaintiffs;
(g)forward one set to the second defendant
(h)requesting that he complete and sign that set and forward it to the Cadastral Registrar; and
(i)forward one set to the third defendant
(j)requesting that he complete and sign that set and forward it to the Cadastral Registrar.
Pursuant to paragraph 4 of the Order, he had to:
(k)communicate by telephone with the second defendant
(l)and read out to him the Order;
(m)communicate by telephone with the third defendant
(n)and read out to him the Order;
(o)file
(p)and serve an affidavit verifying compliance with paragraph 4 of the Order.
The question is whether the first defendant had to carry out each of the above acts personally, and if not, was it clear which ones, if any, he had to carry out personally and which ones could be performed by his solicitor. I am in no doubt that the Order did not require the first defendant to carry out each of the above acts personally. Clearly, he did not have to personally file and serve the verifying affidavit (acts (o) and (p)), nor did he have to personally file and serve a copy of the completed and signed cancellation documents on the solicitors for the plaintiffs (acts (e) and (f)) or on the Cadastral Registrar in Prague (acts (c) and (d)). On the other hand, signing the three sets of the cancellation documents was obviously something that had to be done by him personally (act (b)). As a practical matter, the same could be said about the act of completing the cancellation document (act (a)), but only because they were in the Czech language and presumably Mr Witt would not have been able to perform this task. Otherwise, there would be no reason why someone else could not have completed the cancellation documents on behalf of Mr Talacko. This leaves, under paragraph 3 of the Orders, the acts of forwarding one set of the cancellation documents to each of the second and third defendants (acts (g) and (i)), requesting that he carry out the specified steps (acts (h) and (j)) and, under paragraph 4, the acts of communicating by telephone with each of the second and third defendants (acts (k) and (m)) and reading out to him the Order (acts (l) and (n)).
I consider that the intent of paragraph 3 of the Order was probably that Mr Talacko was to make the request to each of his sons personally, but not that he personally had to forward the set of cancellation documents, and that the intent of paragraph 4 of the Order was probably that Mr Talacko was to telephone each of his sons and personally read out to him the Order. I agree that the father’s communication with his sons was probably considered to be important. But I am by no means certain that this is the correct construction of the Order. In the absence of any differentiation between the various acts by the use of the word “personally”, I consider that both paragraph 3 and paragraph 4 of the Order were unclear and ambiguous. Accordingly, I am not satisfied beyond reasonable doubt that the first defendant has committed a contempt by breaching either paragraph 3 or paragraph 4 of the Order. The plaintiffs’ summons filed on 14 August 2009 will, therefore, be dismissed.
This conclusion makes it unnecessary to deal with the remaining issues such as whether the first defendant’s actions once he was alerted to the argument that he was required to take certain steps personally “cured” any contempt and whether, in the circumstances, it would be appropriate to decline to convict, even if satisfied that a contempt had been committed.[18]
[18]See Re Perkins; Mesto v Galpin [1998] 4 VR 505.
---
3
6
0