Talacko v Talacko (Reasons for decision - 25 February 2015)
[2015] VSC 46
•26 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2009 7819
| JAN TALACKO (as Executor of the Estate of Helena Marie Talacko) AND OTHERS (according to the schedule attached) | Plaintiffs |
| v | |
| JAN EMIL TALACKO AND OTHERS (according to the schedule attached) | Defendants |
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JUDGE: | Zammit AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2015 |
DATE OF JUDGMENT: | 26 February 2015 |
CASE MAY BE CITED AS: | Talacko v Talacko (Reasons for decision – 25 February 2015) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 46 |
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IMPLIED UNDERTAKING – Whether implied undertaking applicable in other related proceedings – Application to use documents in other proceedings - Special circumstances – Release from undertaking.
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APPEARANCES: | Counsel | Solicitors |
| For the Second to Fifth Plaintiffs | Mr S Howells with Dr M Sharpe | Tolhurst Druce and Emmerson |
| For the Fourth Defendant | Mr J Masters | Strongman and Crouch |
HER HONOUR:
Introduction
The second to fifth plaintiffs (‘the plaintiffs’) make application for an order releasing them from their implied undertaking that governs parties to litigation in respect of documents disclosed to them in the course of litigation.
The plaintiffs seek leave to submit 20 emails contained amongst other documents in exhibit DPP‑1 to an affidavit sworn 10 February 2015 by David Phelan, of Tolhurst Druce and Emmerson, the plaintiffs’ solicitors, to the District Court for Prague in Petition proceeding number 49 EXE 2107/2011-73 (‘the enforcement proceeding’) and to the Supreme Court of the Czech Republic in Appeal proceeding number 30 Cdo 3753/2012 (‘the Appeal’) and District Court for Prague in Petition proceeding number 68C 139/2011 (‘the donation proceeding’). The enforcement proceeding, the Appeal and the donation proceeding are referred to collectively in this judgment as ‘the Czech proceedings’. For convenience, I have annexed the 20 emails to these reasons.[1]
[1]Annexure A: 8 emails, the subject the judgment and orders of Elliott J in Talacko v Talacko [2014] VSC 328, and 12 emails, the subject of the orders of Daly AsJ dated 30 January 2015.
The plaintiffs rely on the affidavits of David Phelan sworn 26 August, 28 November 2014 and 10 February 2015 and the affidavit of Josef Hlavicka, sworn 1 December 2014. Mr Hlavicka is an Attorney-at-Law, registered with the Czech Bar Association and works as a partner in the firm Havel Holasek and Partners s.r.o. in Prague. Mr Hlavicka acts for the plaintiffs in the Czech Republic in their claims against the first defendant, Jan Emil Talacko.
The donation proceeding contests the effectiveness of the donation agreements between Jan Emil Talacko, the first defendant, and his sons David Talacko, the second defendant, and Paul Talacko, the third defendant. The proceeding was lodged with the District Court for Prague on 4 November 2011. Mr Hlavicka deposes that:
… This petition was lodged to the District Court of Prague 1 on 4 November 2011. This petition, if successful, enables the Clients to claim their enforceable rights against David Talacko and Paul Anthony Talacko, the persons to whom the Jan Emil Talacko transferred a property by way of a gift with the intention to curtail the creditors (Clients) claims. In this way, it is possible to contest the debtor’s (Jan Emil Talacko) legal acts made during the last three years. By this petition Clients contest donations of Jan Emil Talacko to his sons.[2]
[2]Exhibit ‘Federal Court affidavit’, affidavit of Josef Hlavicka sworn 1 December 2014 [4](ii).
In the enforcement proceeding, the plaintiffs seek orders enabling enforcement of the judgments and orders of Kyrou J in the Supreme Court proceeding 7393 of 1998.[3]
[3]Talacko v Talacko [2009] VSC 533; Talacko v Talacko [2009] VSC 579; orders dated 11 December 2009.
The 20 emails consist of eight emails over which Jan Emil Talacko claimed privilege and which pursuant to the orders of Elliott J, were made available for inspection to the defendants.[4] Elliott J, in hearing an appeal from Daly AsJ, found that s 125(1) of the Evidence Act (Vic) applied, at least in part, to the eight emails and that their immunity was lost due to disclosure.[5]
[4]Talacko v Talacko [2014] VSC 328; orders dated 16 July 2014.
[5]Ibid [82].
In relation to the remaining 12 emails, Daly AsJ heard an application by the plaintiffs to inspect documents discovered by the fifth defendant, which the fifth defendant objected to producing for inspection on the grounds that either he, the fourth defendant, or the estate of the first defendant, had, or may have had, a claim for legal privilege. Daly AsJ ordered that the fifth defendant provide inspection of the 12 emails.[6]
[6]Ruling and orders of Daly AsJ dated 29 January 2015 and 30 January 2015.
The litigation between the Talacko parties has a long history in this Court. The events giving rise to the current proceeding are conveniently summarised in the judgment of Elliott J.[7]
[7]Talacko v Talacko [2014] VSC 328 [26]-[51].
Mr Hlavicka, in the Federal Court 9 November 2012 affidavit, provided an account of the progress of the enforcement and donation proceedings that were lodged on behalf of the plaintiffs.[8] In his most recent affidavit in support of the current application sworn 1 December 2014, Mr Hlavicka does not provide any update of the progress of the enforcement and donation proceedings. He deposes that:
5.I have read in English and understood the decision of Justice Elliott in Talacko v Talacko [2014] 328. I can confirm that the emails referred to by Justice Elliott in his decision and his decision would be relevant and admissible as evidence in the Petition proceedings referred to in my affidavit sworn 9 November 2012 in the Federal Court proceeding. The conduct of parties may involve them seeking to damage the interests of judgment creditors is a relevant matter under Czech law. If such conduct is proven to the satisfaction of the Court then that conduct can be the subject of court orders and penalty.
6.In my opinion the emails and the judgment of Justice Elliott could potentially also be submitted in the pending appeal proceeding lodged by Jan Emil Talacko in the Supreme Court of Czech Republic.[9]
[8]Exhibit ‘Federal Court affidavit’, affidavit of Josef Hlavicka sworn 1 December 2014.
[9]Affidavit of Josef Hlavicka sworn 1 December 2014 [5]-[6].
In the Federal Court 9 November 2012 affidavit, Mr Hlavicka says in relation to the donation agreement, the following:
9.In the civil proceedings (contesting the donation agreements) the Court will probably schedule an oral hearing in the next few months as a next step. In these proceedings, the plaintiffs will have to prove that Jan Emil Talacko has curtailed the rights of the creditor by transferring the properties involved to his sons (the defendants). As a result, the Court will examine, and the evidence will be directed at, the property owned by the defendants. The evidence will focus on the circumstances under which the properties were transferred. However, the law shifts the burden of proof to the defendants in relationship to the intention to prejudice the creditor’s rights if the defendants and the original debtor (the transferor of the properties) are closely related.
10.The Defendant has indicated in both proceedings an intention to object on the basis of his bankruptcy. The Defendant pointed out that a Bankruptcy order in Australia exists and thus the judgments are not enforceable in the Czech Republic. He suggested that the Czech court should consult the relevant Australian law on this issue (Bankruptcy Act 1966). The Defendant stated that according to Article 58(3) Bankruptcy Act 1966, after a debtor has become a bankrupt, it is not possible for a creditor to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt. The Defendant asserts that evaluation of the issue of enforceability of foreign judgments is carried out by the law of the state where the decision was issued. That is the reason why the Czech court should, according to the Defendant, consult the relevant provisions of the Australian Bankruptcy Act. …
11.I consider this trial would be very complex and I assume that both parties will use the right of appeal when the decision is not in their favour. The civil proceedings contesting the donation agreements are currently at the court of first instance. The future decision of this court on the merits of the case may be appealed in a similar way as the decision in the execution proceeding (i.e., ordinary appeal to the Municipal Court in Prague, extraordinary appeal) … to the Supreme Court. Finally, there is a possibility to approach a Constitutional Court by constitutional complaint. Moreover, there is also one extraordinary possibility; to appeal to the European Court for Human Rights (Strasbourg) for breach of a right enshrined in the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. …
13.… I am fully aware that this affidavit is to be used at the Federal Court of Australia and that for making a false statement in this document the penalties could be imposed on me under Australian law. Thus, I hereby declare and promise that everything written in this affidavit is true, correct and not misleading. …[10]
[10]Exhibit ‘Federal Court affidavit’, affidavit of Josef Hlavicka sworn 1 December 2014.
Mr Phelan, in his affidavit sworn 28 November 2014, deposes to the following:
5.I am also informed that Petition proceeding number 68C 139/2011 against David Talacko and Paul Talacko seeks to set aside the donation agreements entered into by JET, David Talacko and Paul Talacko in May 2009 with respect to JET’s valuable Czech properties on the basis that agreements that seek to defeat claims by creditors are invalid. I have concluded from that information that any correspondence between JET, David Talacko and Paul Talacko which discloses knowledge of claims by creditors, an intention to divest assets to defeat those claims, or advice aimed at achieving such an outcome, would be relevant in Petition proceeding number 68C 139/2011.
…
7.… I am instructed by my clients and believe that my clients understand that evidence of communication seeking to avoid the jurisdiction of any Court would be of relevance and significance to all of the proceedings in the Czech Republic. I have not received any instructions to recount my advice that my clients have received from their Czech lawyers and I do not expect to receive such instructions.[11]
[11]Affidavit of David Paul Phelan sworn 28 November 2014 [5], [7].
Mr Phelan provides a summary of the documents over which the plaintiffs seek leave to be released from their implied undertaking, including the 20 emails. As noted, the plaintiffs no longer seek release in respect of all of the documents in exhibit DPP-5 of Mr Phelan’s affidavit sworn 26 August 2014.
Mr Hlavicka’s evidence is that he has had regard to Elliott J’s judgment in Talacko v Talacko [2014] VSC 328, and the eight emails. There is no evidence before the Court that Mr Hlavicka has had regard to the 12 emails which were the subject of Daly AsJ’s ruling dated 29 January 2015 and orders dated 30 January 2015.
The principles
The common law position on the scope of the implied undertaking obligation was stated in the joint judgment of Hayne, Heydon and Crennan JJ in Hearne v Street:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.[12]
[12]Hearne v Street (2008) 235 CLR 125 [96].
The High Court held that the implied undertaking is an obligation of substantive law owed to the court that is not voluntary.[13]
[13] Ibid [106].
The joint judgment examined the case law concerning the implied undertaking obligation and noted the following:
(a) Lord Denning MR’s view in Riddick v Thames Board Mills Ltd that given the discovery process is an invasive one, courts should not allow the other party “to use the documents for any ulterior or alien purpose.”[14]
(b) The observation by Blackburne J in Watkins v A J Wright (Electrical) Ltd that the obligation is one which “the court has right to control and can modify or release a party from.”[15]
[14] [1977] QB 881 at 896.
[15]Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764-765 per Hobhouse J; [1991] 3 All ER 878 at 885.
The High Court also held that the obligation also applies to third parties.[16]
[16]Hearne v Street (2008) 235 CLR 125 [109].
Position under statute – Civil Procedure Act 2010 (Vic)
The common law implied undertaking has been codified in s 27 of the Civil Procedure Act 2010 (Vic) (‘the Act’). This provision places conditions on the protection and use of information and documents disclosed under the overarching obligation in s 26 of the Act.
Section 27 states that:
(1) A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.
(2) The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.
(3) A person—
(a) may agree in writing to the use of information or documents otherwise protected under subsection (1); or
(b) may be released from the obligation imposed under subsection (1) by leave of the court.
(4) Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding.
(5) Nothing in this section limits any other undertaking to a court (implied or specific) whether at common law or otherwise, in relation to information or documents disclosed or discovered in a civil proceeding.[17]
[17]Civil Procedure Act 2010 (Vic) s 27.
Release from the implied undertaking obligation
Documents can be released from the obligation if:
(a) the documents were admitted as evidence and therefore became public; or
(b) the party was released from the undertaking by the court.[18]
[18]Hearne v Street (2008) 235 CLR 125.
A party can seek a court order to be released from the implied undertaking obligation if special circumstances can be established.[19]
[19] Ibid [107].
The release of an implied undertaking obligation was examined in Premier Travel v Satellite Centres of Australia by Campbell J who said:
The principle that is applied when the Court decides whether or not to release or to permit documents which have been produced to the Court on subpoena, and have not been read out in open Court, is that the release of the documents will not be allowed save in special circumstances and when such use will not occasion any injustice to the person who produced the documents under subpoena. Deciding whether special circumstances have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking; see Wellness Pty Ltd v Hamilton-Bond & Ors [2002] NSWSC 1259 at paragraph [8]; Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217 at 225.[20]
[20]Premier Travel v Satellite Centres of Australia [2004] NSWSC 864 [2].
To summarise Campbell J’s principles, the release of documents from the implied undertaking obligation will only be allowed when:
(a) there are special circumstances; and
(b) when such use will not occasion any injustice to the person who produced the documents under subpoena.[21]
[21] Ibid.
The special circumstances test outlined by Campbell J involves considering:
(a) the particular nature of the material produced;
(b) the policy underlying the implied undertaking;
(c) whether the needs of justice are better served by relieving from or maintaining the undertaking; and
(d) any other relevant factors.[22]
[22]Premier Travel v Satellite Centres of Australia [2004] NSWSC 864 [2].
This test expounded by Campbell J is consistent with the statement made by Wilcox J in Springfield Nominees Pty Ltd v Bridgeland Securities Ltd:
For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[23]
[23] (1992) 38 FCR 217 [26].
In Springfield Nominees Pty Ltd v Bridgeland Securities Ltd, the applicant was granted leave to use the document in another proceeding as the document dealt with matters relevant to that proceeding and had “the potential to be important to the proper determination of that case”.[24] Furthermore, Wilcox J noted that the document had come into the possession of the applicant in ethical circumstances.[25]
[24] Ibid [27].
[25] Ibid.
More recently, in Deputy Commissioner of Taxation v Karas, Forrest J examined the circumstances in which the implied undertaking could be released or modified by the court, namely:
(a) if the purpose for which the use is to be made is not collateral or ulterior to the subject proceeding then the undertaking has no application;
(b) where the undertaking has application, the undertaking may be unenforceable if the documents have entered “the public domain”; and
(c) where the undertaking has application, if the applicant is able to demonstrate “special circumstances” then the Court may release the applicant from the undertaking.[26]
[26] [2012] VSC 143 [23].
Based on Forrest J’s reasoning, the following questions must be asked when determining whether the implied undertaking obligation should be released:
(a) Whether the intended use of the documents is for a collateral or ulterior purpose?
(b) Did the documents enter the public domain?
(c) Can the applicant demonstrate special circumstances?
The fourth defendant’s submissions
The fourth defendant submits that the evidence filed in support of the plaintiffs’ proposed release from the implied undertaking is insufficient to establish the relevance of the 20 emails to any of the Czech proceedings. The fourth defendant submits that Mr Phelan’s affidavit does no more than contain assertions from an Australian legal practitioner about the relevance of documents to the Czech proceedings. It is submitted that Mr Phelan is not qualified as a Czech lawyer and therefore is not in a position to testify about the relevance of documents in Czech proceedings. In relation to Mr Hlavicka’s affidavit, the fourth defendant submits that it too contains assertions about the relevance of the documents to the Czech proceedings without properly identifying the nature or present status of the proceedings. In relation to the Federal Court 9 November 2012 affidavit, the fourth defendant notes that Mr Hlavicka gives evidence about the status of the proceeding as at 9 November 2012 but that there is no current evidence as to the state of the proceeding.
The fourth defendant submits that the evidence relied upon by the plaintiffs is insufficient to enable the Court to determine “the likely contribution of the document to achieving justice in the second proceeding”. In such circumstances, the fourth defendant submits that the plaintiff has not established any “special circumstances” that would support their release from the implied undertaking in respect of the 20 emails and that the application should be dismissed.
The enforcement proceeding and the Appeal
In relation to the enforcement proceeding and the related appeal, the plaintiffs concede that in light of the recent decision of the Appeal Court matter, it is not clear if there will be any need for the emails. The Supreme Court of the Czech Republic delivered a Resolution dated 18 December 2014.[27] In summary, the conclusions reached by the Supreme Court of the Czech Republic is that the principal argument raised was that the Municipal Court in Prague (‘the Municipal Court’), in its Resolution dated 4 October 2012, erred in concluding that there was sufficient evidence of reciprocity.
[27]Exhibit DPP-3, affidavit of David Phelan sworn 10 February 2015.
In effect, while the Supreme Court of the Czech Republic drew the same conclusions as the Municipal Court on the principal question of reciprocity, the procedural question of how the issue is to be dealt with has been remitted for consideration.
Counsel for the plaintiffs, Mr Howells, submitted that he could not advance at this stage with clarity what issues will be considered by the Municipal Court and how the emails would relate to the hearing. In such circumstances, the plaintiffs submit that any question of the use of the emails in the Appeal or the enforcement proceeding be stayed until it is clear what the Municipal Court proposes to do.
The fourth defendant submits that there is no evidentiary basis to satisfy the Court that the emails are relevant to the Czech proceedings, including the enforcement proceeding and the Appeal.
In relation to the enforcement proceeding and the Appeal, by the plaintiffs’ own concession, it is not clear since the handing down of the Resolution dated 18 December 2014, what issues are yet to be determined by the Municipal Court, and that the key issue which has been remitted deals with a procedural matter in relation to reciprocity. There is at this stage no evidence before the Court which could support the plaintiffs’ application for release from the implied undertaking in relation to the 20 emails for their use in the enforcement proceeding or the Appeal.
There is nothing preventing the plaintiffs from issuing a further application when more information is available.
The donation proceeding
The documents which the plaintiffs seek to have released are eight emails which were, as discussed, the subject of the judgment of Elliott J in Talacko v Talacko,[28] and 12 emails that are the subject of a ruling and orders made by Daly AsJ on 29 and 30 January 2015.
[28][2014] VSC 328.
The eight emails were the subject of the detailed reasons of Elliott J in which his Honour set out the nature of the allegations and, from paragraphs 80 to 81 of his judgment, gave details of the eight emails and whether or not he considered they were prepared in the furtherance of the commission of a fraud.
I am not satisfied that Mr Phelan’s evidence supports a finding that special circumstances exist justifying the release of the documents. Mr Phelan, while extremely familiar with the Australian proceeding, and possibly the Czech proceedings, is an Australian lawyer and there is no evidence that he is qualified in Czech law. On this basis, I consider that little, if any weight can be given to Mr Phelan’s evidence about the relevance of the emails in the donation proceeding.
I consider Mr Hlavicka is in a position to give evidence about the use and potential relevance of the emails in the donation proceeding. Mr Hlavicka deposes that the conduct of the parties is a relevant matter under Czech law and may involve fraudulent actions. This includes conduct by the parties seeking to damage the interests of the judgment creditors. If such conduct is proven to the satisfaction of the Czech Court, then that conduct can be the subject of court orders and penalties. Mr Hlavicka has read the decision of Elliott J in Talacko v Talacko,[29] and “confirms that the emails referred to by Elliott J in his decision and his decision would be relevant and admissible as evidence in the Petition proceeding referred to in my affidavit sworn 9 November 2012 in the Federal Court proceeding”.[30] The emails include private communications between the defendants; advice in relation to transferring the relevant properties; advice from a lawyer to the defendants about events in court; and correspondence from lawyers, including an email dated 27 August 2008, addressed to a lawyer from Jan Emil Talacko in which he sought advice on how to defraud the plaintiffs’ creditors.[31]
[29][2014] VSC 328.
[30]Affidavit of Josef Hlavicka sworn 1 December 2014 [5].
[31]Talacko v Talacko [2014] VSC 328 [81](1)-(8).
In his Federal Court affidavit sworn 9 November 2012, Mr Hlavicka provides an update of the donation proceeding at paragraph 8. There is no other evidence before the Court as to the current status of the donation proceeding. Having made that observation, I do not consider that this factor alone outweighs Mr Hlavicka’s evidence about the relevance of the eight emails and the judgment of Elliott J to the donation proceeding.
Although Mr Hlavicka did not go into detail about each of the eight emails, he has had regard to the judgment of Elliott J, which sets out the nature of the emails, and he deposes, albeit at a general level, to the relevance to the donation proceeding. Even though the burden of proof in the donation proceeding shifts to the defendants, the documents are likely to still have relevance. Mr Hlavicka has, in my view, appropriately stated an opinion as to the relevance of the eight emails albeit at a general level. He makes no further assertion as to how the eight emails may ultimately be construed by the Czech District Court.
The documents came into the possession of counsel of the second to fifth plaintiffs through the discovery process and not in circumstances that would discredit them. However, the extent of the documents’ importance to the determination of the Czech proceedings must be considered.
Mr Hlavicka deposes in his affidavit sworn 1 December 2014 that the eight emails are relevant to the donation proceeding. I consider, in light of Mr Hlavicka’s affidavit and his qualifications and involvement in the donation proceeding, that there is sufficient evidence before the Court establishing that there are special circumstances justifying the release of the eight emails for the Czech Court’s use in the donation proceeding.
In relation to the remaining 12 emails, there is no evidence by Mr Hlavicka as to the relevance of these emails to the donation proceeding.
The plaintiffs submit that the Court can rely on Mr Phelan’s evidence given in his affidavit of 28 November 2014, starting at paragraphs 9 to 8 inclusive. As discussed, I do not consider Mr Phelan’s evidence about the 12 emails is a sufficient basis to grant an order releasing the documents for use in the donation proceeding. Mr Phelan does not go through the individual 12 emails with any specificity or set out how they may be relevant. It is difficult to know from Mr Phelan’s evidence how the specific 12 emails are relevant. In circumstances where a court should not undertake the exercise of its discretion lightly to release or modify the implied undertaking, I am not satisfied that the plaintiffs should be released from their undertaking to use the 12 emails in the donation proceeding.
Prejudice
Mr Masters, on behalf of the fourth defendant, submits that on the question of prejudice, the Court should have regard to what the emails are and what is contained in them. They are primarily confidential, personal intra-family communications about family matters. Mr Masters submits that the use of the emails in the donation proceeding, would prejudice the fourth defendant, if special circumstances have not been established.
The fourth defendant is not a party to the donation proceeding and the plaintiffs seek to use the documents solely to submit them to a court in the Czech Republic. In such circumstances, I do not consider there is any substantive prejudice to the fourth defendant by releasing the plaintiffs from their undertaking and providing the eight emails for use in the donation proceeding.
Conclusion
For the reasons set out, I consider the plaintiffs should be given leave to use the eight emails in the donation proceeding (number 68C 139/2011 filed in the District Court for Prague). I do not consider there is sufficient evidence justifying an order in relation to the 12 emails which are the subject of the ruling and orders of Daly AsJ dated 29 and 30 January 2015.
Finally, I do not consider there is sufficient evidence to justify the granting of leave for the emails to be used in the enforcement proceeding (number 49 EXE 2107/2011-73) and the Appeal (Supreme Court of the Czech Republic proceeding number 30 Cdo 3753/2012).
I will hear the parties on costs and the form of order.
SCHEDULE OF PARTIES
| JAN TALACKO (as Executor of the Estate of Helena Marie Talacko) | First Plaintiff |
| ALEXANDRA BENNETT | Second Plaintiff |
| MARTIN TALACKO | Third Plaintiff |
| ROWENA TALACKO | Fourth Plaintiff |
| ALEXANDRA BENNETT AND DAVID ADAMS (as Executors of the Estate of Margaret Helen Beatrice Talacko) | Fifth Plaintiff |
| - and - | |
| JAN EMIL TALACKO | First Defendant |
| DAVID TALACKO | Second Defendant |
| PAUL ANTHONY TALACKO | Third Defendant |
| JUDITH GAIL TALACKO | Fourth Defendant |
| PETER ANDREW NOEL TALACKO | Fifth Defendant |
| AMANDA MAREE FISCHER | Sixth Defendant |
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