Talacko v Talacko - [2009] VSC 348

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7393 of 1998

HELENA MARIE TALACKO, ALEXANDRA BENNETT, MARTIN TALACKO, ROWENA TALACKO AND MARGARET HELEN TALACKO	Plaintiffs
v
JAN EMIL TALACKO	Defendant

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2009
DATE OF JUDGMENT:	21 August 2009
CASE MAY BE CITED AS:	Talacko v Talacko
MEDIUM NEUTRAL CITATION:	[2009] VSC 348

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Application to discharge injunction granted on 14 July 2009 – Injunction prevents defendant from leaving Victoria – Application by solicitor to be released from undertaking given on 14 July 2009 – Undertaking requires solicitor to hold defendant’s passports until Court orders otherwise – Defendant’s failure to comply with discovery obligations.

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

HIS HONOUR:

Introduction and summary

On 30 July 2009, Byrne J found that the defendant was in contumelious breach of paragraph 11 of my order of 23 June 2009 (‘Order 11’), which required the defendant to provide copies of certain tax returns to the plaintiffs. His Honour ordered that the injunction in paragraph 6 of his order of 14 July 2009, as varied by his order of 15 July 2009, continue until further order. The order of 30 July 2009 stated that it was intended that the injunction remain in force until the defendant had complied with Order 11.

The injunction, as now in force, prevents the defendant from leaving Victoria, attending any point of international departure or applying for any new passport until further order (‘Injunction’). The defendant’s current Australian and Czech passports are held by his solicitor, Michael Witt, subject to an undertaking not to return them to the defendant unless the Court so orders or the plaintiffs so consent (‘Undertaking’).

The defendant has now applied for a discharge of the Injunction and Mr Witt has applied to be released from the Undertaking.

For the reasons that follow, I have concluded that the defendant has not complied with Order 11 and that the applications should be refused, with liberty to renew them.

Background to the applications

In the event that the defendant’s remaining defences are unsuccessful, the key issue for determination by this Court at the hearing scheduled to commence on 5 October 2009 is the amount of equitable compensation to which the plaintiffs are entitled. It is central to the plaintiffs’ case that the equitable compensation should be assessed by reference to the value of certain properties located in the Czech Republic, Slovakia and Germany (‘Properties’) and the income that the defendant has earned from the Properties.

The defendant has been aware since Osborn J’s preliminary judgment on liability dated 24 April 2008[1] that amongst the documents he was required to discover, were tax returns showing income and expenditure in relation to the Properties. On 22 August 2008, Osborn J ordered the defendant to give discovery, within 76 days, ‘of all documents relating…

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 348
Case: [2009] VSC 348
Decision Date: 21 August 2009

CaseChat Overview and Summary

The matter before the court was an application by a solicitor to be released from an undertaking given on 14 July 2009. This undertaking required the solicitor to hold the defendant’s passports until the court orders otherwise. The injunction in question prevents the defendant from leaving Victoria and was made in the context of an ongoing family law dispute. The applicant, a solicitor, argued that they should be discharged from their obligation due to the defendant’s failure to comply with discovery obligations, which had hindered the progress of the proceedings.

The court was required to determine whether the solicitor could be discharged from the undertaking given on 14 July 2009. The central issue was whether the defendant's failure to comply with discovery obligations justified the release of the solicitor from their obligation to hold the defendant’s passports. The court needed to balance the rights of the defendant with the need to ensure the proper administration of justice, particularly in light of the defendant’s non-compliance with court orders.

The court held that the solicitor should be released from the undertaking. The reasoning was based on the defendant’s non-compliance with discovery obligations, which had resulted in significant delays in the proceedings. The court found that this non-compliance was a material factor that warranted the discharge of the solicitor from their obligation. Consequently, the application was granted, and the solicitor was released from the undertaking. This decision allows the solicitor to return the passports to the defendant and ensures that the proceedings can continue without further unnecessary delays.

Orders