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Talacko v Talacko (No 2)

Talacko v Talacko (No 2)

Case [2009] VSC 444 2 October 2009

Injunction

Interlocutory Orders

Stay of Proceedings

Civil Litigation & Procedure

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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	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 AND 30 SEPTEMBER 2009
DATE OF JUDGMENT:	2 OCTOBER 2009
CASE MAY BE CITED AS:	TALACKO v TALACKO NO. 2
MEDIUM NEUTRAL CITATION:	[2009] VSC 444

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Injunction – Order sought restraining the defendant from leaving the jurisdiction – Apprehension that he would breach freezing order once out of the jurisdiction – Source of power for such an order – Writ of ne exeat colonia – Arrest in pending provisions – Order ancillary to freezing order – Statutory power to grant injunctions - Inherent jurisdiction – Defendant restrained until judgment given or he paid into Court a sum of money representing the value of the properties subject to the freezing order – Supreme Court (General Civil Procedure) Rules 2005, rr.37A, 57.10 – Supreme Court Act 1986, ss.3(6), 37, 86-100.

Practice and Procedure – Interlocutory application – Cross-examination of deponent – Supreme Court (General Civil Procedure) Rules 2005, r.40.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr SJ Howells and Ms L Kinda	Holding Redlich
For the Defendant	Mr DJ Williams	Findlay Arthur Phillips

HIS HONOUR:

The Application

This is an application by the plaintiffs, by a summons filed on 4 September 2009, for an order that until the hearing and determination of both this proceeding and proceeding No. 7819 of 2009 (“the 2009 proceeding”):

(a) the defendant not leave the State of Victoria;
(b)the defendant not attend any point of international departure; and

(c) the defendant not apply for any other passport.

(I will refer hereafter to this type of order as a “no departure injunction”). The summons also sought an order that the defendant’s passport be held by his solicitor, Michael Witt of Findlay Arthur Phillips, pursuant to an undertaking by Mr Witt not to return the passport to the defendant unless the Court so ordered or the plaintiffs’ solicitor consented in writing.

In support of the application, the plaintiffs filed an affidavit of Alana Brooke Giles, a solicitor employed by Holding Redlich, the firm of solicitors acting for the plaintiff, sworn on 4 September 2009 and an affidavit of Howard Roger Rapke, a partner of Holding Redlich, sworn on 7 September 2009. In opposition to the application, the defendant, Jan Emil Talacko, filed an affidavit sworn by him on 9 September 2009 and a short correcting affidavit sworn by him on 17 September 2009. In reply, the plaintiffs filed an affidavit of Jan Talacko sworn on 10 September 2009. Mr Jan Talacko is the son and litigation guardian of the first plaintiff, Helena Marie Talacko, the sister of the defendant.

The Background to the Application

There are a number of judgments in the Court which set out the protracted history of this dispute.[1] Although it is unnecessary to…

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 (No 2)

Details

AGLC: Talacko v Talacko (No 2) [2009] VSC 444
Case: [2009] VSC 444
Decision Date: 2 OCTOBER 2009

CaseChat Overview and Summary

In Talacko v Talacko (No 2), the court was asked to consider whether it had the jurisdiction to restrain the defendant from leaving Australia. The plaintiff, Talacko, sought an injunction under the writ of ne exeat colonia, an ancient writ used to prevent a person from leaving the jurisdiction. This was because the plaintiff was concerned that the defendant would breach a freezing order, which restrained him from disposing of his assets, once he left the country. The legal issues centred on whether the court could issue such an order and what power it derived from to do so. The court considered whether its power to grant the injunction arose from statutory provisions, such as those found in the Supreme Court Act 1986, or from its inherent jurisdiction.

The court examined the statutory framework, including provisions in the Supreme Court (General Civil Procedure) Rules 2005, which allow for the making of ancillary orders to support a freezing order. It concluded that the court's jurisdiction to grant the injunction was not solely dependent on the statutory provisions but also on its inherent jurisdiction to prevent a party from interfering with the administration of justice. The court found that the defendant's potential flight from the jurisdiction constituted an interference with the court's ability to enforce the freezing order, thereby justifying the issuance of the injunction. The court balanced the defendant's right to freedom of movement against the need to ensure the effectiveness of the court's orders.

The court ultimately decided to restrain the defendant from leaving Australia until such time as the judgment was given or the defendant paid into court a sum of money representing the value of the properties subject to the freezing order. This decision was made in the context of an interlocutory application, and the court also considered procedural matters, including the cross-examination of the deponent under the Supreme Court (General Civil Procedure) Rules 2005. The court's decision was grounded in both statutory authority and its inherent jurisdiction, demonstrating a careful balance between individual rights and the enforcement of court orders.

Orders