FEDERAL COURT OF AUSTRALIA Talacko v Talacko (No 2) [2011] FCA 560 Citation: Talacko v Talacko (No 2) [2011] FCA 560 Parties: HELENA MARIA TALACKO, ALEXANDRA ANN BENNETT, MARTIN THOBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO v JAN EMIL TALACKO File number: VID 201 of 2010 Judge: NORTH J Date of judgment: 13 May 2011 Date of hearing: 13 May 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr G Bigmore QC Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr D Williams SC Solicitor for the Respondent: Findlay Arthur Phillips Counsel for the Official Trustee: Ms R Curnow Solicitor for the Official Trustee: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 201 of 2010 BETWEEN: HELENA MARIA TALACKO, ALEXANDRA ANN BENNETT, MARTIN THOBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO Applicants AND: JAN EMIL TALACKO Respondent JUDGE: NORTH J DATE OF ORDER: 13 MAY 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The interim application for the easing of travel restrictions filed by the respondent on 4 May 2011 be dismissed with costs. 2. (a) The interim application for replacement of the Official Trustee by a private trustee filed by the applicants on 9 May 2011 be adjourned to 15 July 2011. (b) The costs of the interim application referred to in (a) are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 201 of 2010 BETWEEN: HELENA MARIA TALACKO, ALEXANDRA ANN BENNETT, MARTIN THOBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO Applicants AND: JAN EMIL TALACKO Respondent JUDGE: NORTH J DATE: 13 MAY 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Mr Jan Emil Talacko, the respondent in this proceeding, has applied to the Court for orders which would have the effect of permitting him to travel to Slovakia to attend the hearing on 19 May 2011 of a summons in a case being brought against him in Slovakia. This is the second such application brought in the current proceeding. The background is set out in reasons for judgment delivered on 11 March 2011. That application was unsuccessful. 2 It is now argued on behalf of Mr Talacko that circumstances have sufficiently changed to warrant a relaxation of the travel restriction to allow him to attend the hearing in Slovakia on 19 May 2011. Two relevant changes are particularly relied on. The first is that since 11 March 2011 a creditor's petition has been served on Mr Talacko. The significance of this change is that it cannot now be said, as the applicants contended on the last occasion, that Mr Talacko's presence within the jurisdiction is required in order to be served with the creditor's petition. 3 The second relevant change in circumstances relied on by the applicants concerns the previous position under Slovak law that the land in question in the proceedings in Sucha, Slovakia could not be transferred to a non-Slovak citizen until the end of that restriction on 20 May 2011. The residency restriction has now been extended for three years. Whilst the restriction applies, the land in Sucha remains in the name of Mr Talacko and the impugned transaction of transfer to his sons cannot take effect because they are Czech rather than Slovak citizens. With the deferral of the lifting of the residency requirement, the impugned transfer cannot take effect for three years. Consequently, the second change supports a relaxation of the travel restriction. 4 In relation to the first change of circumstances relied on, the applicants contend that Mr Talacko's presence in the jurisdiction is nonetheless still required for the purpose of the administration of his estate by the interim trustee. In particular, it could be expected that the interim trustee will at some stage require Mr Talacko to sign documents which would have the effect of reversing the impugned transfer to his sons. 5 However, Mr Williams SC, who appeared as counsel for Mr Talacko, contended that the interim trusteeship has been in existence for a significant period. He said there has been no history of a failure to cooperate and that Mr Talacko has not refused to comply with any steps required of him by the interim trustee. 6 Whilst this is technically accurate, it does not acknowledge the reality lying behind the current state of affairs. In order to reverse the impugned transaction in relation to the Sucha property, Mr Talacko would be required to sign a document which, in effect, accuses his sons of acting contrary to Slovak law. Mr Williams has indicated that Mr Talacko would not sign such a document on the grounds that it would not express a truthful position regarding the circumstances of the transfer of land. 7 The position of Mr Talacko in relation to the administration of his estate is likely to raise issues of controversy between the interim trustee and himself. These issues are not likely to become acute until Mr Talacko's application for special leave to appeal to the High Court from the judgment of the Victorian Court of Appeal, is determined. There is, therefore, currently an interest in the applicants having Mr Talacko remain within the jurisdiction. Thus, the first change of circumstances relied on by Mr Talacko does not answer entirely the issue raised by the applicants and cannot be regarded as sufficient to warrant a relaxation of his travel restrictions. 8 Against the applicants' argument to have Mr Talacko remain within the jurisdiction it is necessary to consider the consequences to him if he fails to attend the court hearing in Slovakia on 19 May 2011. On this issue, affidavit evidence has been filed by the applicants and respondents from lawyers in Slovakia explaining the consequences of his failure to attend the hearing on 19 May 2011. 9 The hearing on 19 May 2011 is an adjourned hearing of the previous hearing on 29 March 2011, to which the earlier reasons for judgment were directed. At the previous hearing, the applicant in Slovakia failed to attend and a legal representative attended on behalf of Mr Talacko. Mr Williams contended that the steps taken by the Slovakian Court on that occasion made it compulsory for Mr Talacko to appear at the adjourned hearing on 19 May 2011. 10 Ms Volnar, the Slovakian lawyer engaged by Mr Talacko, states at [8] of her letter of advice dated 29 April 2011: Given the specifics of the protection of personhood cases, the attendance of Mr Talacko at the first hearing is of crucial importance. As defined by Slovak law, facts and evidence identified later shall not be taken into account. Therefore, personal attendance of Mr Talacko at later stage - at the next hearings won't be of such effect as his personal attendance at the first hearing in the matter. 11 She continues at [9]: If Mr Talacko did not attend the hearing on 19 May 2011, the adequate excuse based on the serious grounds has to be provided to the Court. Otherwise, he could potentially be found to be in contempt of the Court. It is possible, although not certain, that the Court would accept as an adequate excuse for Mr Talacko not attending that he was prohibited from travelling due to an order of the Federal Court of Australia. The Court may also adjourn the hearing on 19 May 2011 due to the absence of Mr Talacko. As stated in our previous affidavits, we consider that Mr Talacko's personal attendance and giving of evidence is of critical importance to the conduct of his defence. Therefore, were he unable to attend to give evidence on 19 May 2011, Mr Talacko's defence in the Komisak proceeding could be seriously impaired as facts and evidences provided after the first hearing shall not be taken into account. 12 Mr Polacek, the Slovakian lawyer engaged by the applicants, states at [6] - [11] of his affidavit sworn 9 May 2011: 6. According to the minutes attached to the Affidavit as Exhibit B ("Minutes"), the Defendant shall provide for the Defendant's presence at the hearing on 19 May 2011. The Minutes do not specifically provide that the Defendant was excused for being absent from the hearing, although the excuse of the plaintiff and his attorney-at-law for being absent is included in the Minutes. If the Defendant or his Attorney excused the absence of the Defendant, it would have been recorded in the Minutes. The Court was not informed by the Attorney that the Defendant is unable to attend the hearing due to an official court order preventing him from leaving Australia. I suppose that if the Court were aware of this fact, the above instruction would not be made by the Court. Moreover, the Minutes do not specifically provide that the Court has the intention of examining the Defendant in person. 7. I am of the opinion that the official order preventing the Defendant from leaving Australia is a serious and objective ground for the Defendant's excuse of being absent from the hearing. It is very unlikely that the Court would force the Defendant to attend the hearing in the case that the Defendant cannot leave Australia without violating a court order. 8. The instruction stated in the Minutes that the Attorney shall provide for the Defendant's presence at the next hearing should not be interpreted as his summons to the next hearing. Summoning to the next hearing should be carried out if both parties are not present at the hearing during their summoning. If this were the case, the Minutes would have included the parties' acknowledgment of 19 May 2011 as the date of the next hearing, and most importantly, the parties would have waived their right to be summoned by a separate letter. Moreover, it results from the Minutes that the parties (their legal representatives) will be summoned again to the next hearing. 9. If a party to a proceeding is legally represented by an attorney-at-law, the court shall deliver documents only to this attorney. If a party is required by a court to perform anything personally, a document shall be delivered both to the attorney and the party (Sec. 49 Par. 1 of the Code of Civil Procedure). To the best of my knowledge, the summons has not been delivered personally to the Defendant; it was delivered only to the Attorney. Based upon this fact, I assume that the Court does not require the Defendant to perform anything personally at the Civil Proceeding, e.g. to submit a document, to be examined, etc. 10. I am of the opinion that the Defendant's procedural rights and duties in the Civil Proceeding may be and should be sufficiently and effectively ensured by his Attorney. The Attorney is entitled to legally represent the Defendant to the full extent of his procedural rights and duties; in other words, the Attorney is entitled to perform any procedural act on behalf of the Defendant. Please note that it is a common practice in civil proceedings for only legal representatives to act before the court on behalf of parties; the personal presence of the parties at a hearing is rare and the court usually continues the proceedings only with the attorneys being present. 11. According to my opinion, the Defendant's presence at a latter stage of the Civil Proceeding would be of the same effect as his attendance at the first hearing. The Code of Civil Procedure does not distinguish the facts and evidence submitted at the end of the proceedings from the facts and evidence submitted at the beginning of the first hearing. Please note that it is a common practice in Slovakia for the Court to hold multiple oral hearings within each instance of the court proceedings. 13 Mr Polacek concludes at [12]: The Defendant has the right to ask the Court to adjourn the hearing on serious grounds (Section 119 Par. 1 of the Code of Civil Procedure). I am of the opinion that the Court could consider the official order preventing the Defendant from leaving Australia a serious and justified reason to adjourn the hearing. The Code of Civil Procedure does not limit the time period for which the hearing may be adjourned; therefore, even a 6-month adjournment is possible. 14 Both Slovakian lawyers agree that the Slovakian Court is empowered to adjourn the proceedings on 19 May 2011 if there is a serious reason for the failure of Mr Talacko to attend in person. Furthermore, according to Mr Polacek, most of the initial steps required at the hearing on 19 May 2011 can be accomplished by the attendance of a legal representative for Mr Talacko. 15 To the extent that the legal representative of Mr Talacko in Slovakia is not able to fulfil all the requirements of the Slovakian Court by being present at the hearing, the indication given in the reasons for judgment dated 11 March 2011 remains applicable in the present circumstances. In those reasons it was indicated for the benefit of the Slovakian Court that the reason for the failure of Mr Talacko to attend the hearings in Slovakia flows from the orders made by this Court in Australia. It is likely that comity amongst courts internationally would mean that this factor would be considered by the Slovakian Court. 16 It follows that the risk of any prejudice to Mr Talacko from the failure to attend the hearing in Slovakia is not sufficient to warrant altering the existing travel restrictions. 17 Consequently, the application is refused. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 26 May 2011