Talacko v Talacko

[2009] VSC 446

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7398 of 1998

HELENA MARIE TALACKO & ORS	Plaintiffs
v
JAN EMIL TALACKO	Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2009
DATE OF RULING:	8 September 2009
CASE MAY BE CITED AS:	Talacko & Ors v Talacko
MEDIUM NEUTRAL CITATION:	[2009] VSC 446

---

CIVIL – Costs related to trial of preliminary issues ordered – Costs ‘of and incidental to’ preliminary hearing – Section 24(1) of the Supreme Court Act 1986 – Plaintiff sought clarification of ambit of order – No material ambiguity requiring clarification in the interests of justice – Application for declaration refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Howells	Holding Redlich Lawyers
For the Defendant	Mr D Williams	Findlay Arthur Phillips

HIS HONOUR:

1. On 24 April 2008 I gave judgment with respect to the trial of preliminary issues in this matter.  Those issues substantially disposed of the question of liability as between the parties.  Their disposition necessarily required the hearing of extensive evidence, the critical components of which are referred to in my judgment.  On 22 August 2008 I ordered that the defendant pay the plaintiff's costs of and incidental to the hearing of preliminary issues in respect of which judgment was given on 24 April 2008.  That order was subsequently upheld on appeal.

1. Dispute has now arisen before Wood AsJ as to whether such order embraces costs claimed in respect of preparation for the hearing and in connection with the hearing.  The affidavit of Judith Rosalie Hedstrom sworn 19 August 2009 states that when the matter came on for taxation in June of this year Mr Weingart who appeared for the defendant in effect took a global objection to the ambit of the costs claimed.  She then states,

Associate Justice Wood interpreted the 22 August 2008 order on a very narrow basis and decided to proceed with the taxation of costs on this limited interpretation by only taxing the items that specifically related to the actual hearing in November 2007 on an interim basis.  This included items 410, 565 to 616 inclusive, 621 and 622 of the plaintiff's bill of costs.  He also allowed three days of preparation for the hearing to be taxed.

1. The plaintiffs now seek to clarify the ambit of my order by way of a declaration that the costs to be allowed pursuant to Order Number 1A of my orders made on 22 August 2008 are those costs of and incidental to the hearing in November 2007 including the costs of and incidental to the preparation of particulars, affidavits, exhibits, aide-memoire, outline and submissions, court book, briefing witnesses, pre‑trial directions, all preparation in the two weeks prior to the hearing and two days hearing on the objections to affidavits on 29 October and 30 October 2007.

1. Section 24(1) of the Supreme Court Act 1986 provides that,

Unless otherwise expressly provided by this or any other Act or by the rules, the costs of and incidental to all matters in the court including the administration of estates and trusts are in the discretion of the court, and the court has full power to determine by whom and to what extent the costs are to be paid. 

1. The Court of Appeal has recently held in Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2),[1] that,

When one party is ordered to pay the other party's costs of a proceeding, that liability extends to the costs of such preparatory steps as are shown to be reasonably connected with the proceeding. 

The costs of the proceeding are regarded as being synonymous with the costs of and incidental to the proceeding. 

[1][2009] VSCA 178.

1. In the present case I used the phrase ‘of and incidental to the hearing’ to make abundantly clear that the costs were not intended to be restricted to those strictly of the hearing itself. 

1. The phrase ‘of and incidental to’ is usefully discussed by Sir Robert Megarry, the Vice Chancellor In Re Gibson's Settlement Trusts[2].  On the one hand the phrase extends the award of costs to costs incurred in connection with matters in the court.  On the other hand it requires such costs to be subordinate to or causally linked to such a matter. 

   [2][1981] 1 Ch 179, 184-185, applied in McIntyre v Perks [1988] 15 NSWLR 417, 426.

1. In the present case on the one hand the phrase extends the costs to those preparatory to the hearing, on the other hand it limits costs of the prior proceeding recoverable to those which were in fact preparatory to the hearing.  Those costs would ordinarily include the costs of the preparation of evidence and documentation utilised in the hearing, and in this respect I note that the hearing proceeded by way of evidence given in the first instance by way of affidavit.

1. Wood AsJ acting as the taxing officer is however the arm of the Court charged with deciding what costs were necessary or proper for the plaintiffs to incur in respect of the hearing of the preliminary issues. 

1. I return then to the declaration which is being sought.  The power to make a declaration is a broad one, but I am not now seized of the matter in the way I was at the time I made the relevant order and both as a matter of strictness and as a matter of procedural fairness, I have real doubts that I can or should seek to go behind my previous order.

1. I would of course do so if it was plain that there was a material ambiguity which it would be in the interests of justice to clarify at this point in time and that a declaration would have this effect.  The bill of costs however is not before me and I am not persuaded I should make a declaration.  In my view it would be necessary to be certain as to the effect of such a declaration before it could be made and I am not persuaded that the categories which are referred to in the proposed declaration are sufficiently certain.

1. Further, the material before me does not clearly demarcate an underlying or satisfactory basis on which to better define the ambit of the order that I previously made.  Each of the categories identified by Ms Hedstrom and in respect of which a declaration is sought, potentially embrace or include costs which might be covered by my order.  Whether however, the costs claimed in fact fall within the order, is ultimately a question of fact for the taxing officer to determine.

1. I should for the sake of completeness say that I accept Mr Williams' submission that the order speaks for itself and I should not make any further ancillary order unless there is a clear and satisfactory basis founded on subsequent circumstances or a material doubt justifying such further order.  I propose to dismiss the application.