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

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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

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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.

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

HIS HONOUR:

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.

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.

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.

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

Unless otherwise expressly provided by this or any other Act or by the…

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 [2009] VSC 446
Case: [2009] VSC 446
Decision Date: 8 September 2009

CaseChat Overview and Summary

Talacko v Talacko was a case that came before the court, where the primary issue was the allocation of costs related to a trial of preliminary issues. The plaintiff sought clarification of the ambit of the order concerning these costs. The court was tasked with determining whether there was any material ambiguity in the order that would require clarification in the interests of justice. The case was heard in the Supreme Court of Victoria, which has the jurisdiction to decide on such matters under Section 24(1) of the Supreme Court Act 1986.

The legal issues the court had to address were whether the costs related to the trial of the preliminary issues were properly described as being 'of and incidental to' the preliminary hearing, and whether the plaintiff's application for a declaration to clarify the order was warranted. The court needed to assess if there was a significant ambiguity in the original order that necessitated further clarification. The plaintiff argued that there was ambiguity in the scope of the costs that could be claimed as being 'of and incidental to' the preliminary hearing.

The court found that there was no material ambiguity in the order that would warrant further clarification. It concluded that the costs related to the trial of preliminary issues were appropriately described as being 'of and incidental to' the preliminary hearing. Therefore, the court rejected the plaintiff's application for a declaration, finding that no clarification was needed in the interests of justice. The court's reasoning was based on the premise that the original order was clear and that the plaintiff's request for clarification was not justified.

Orders