Plaintiffs v Defendant

JUDICIAL REVIEW - Challenge to the issue by the Prothonotary of a certificate under s 15 of the Foreign Judgments Act 1991 (Cth) - Whether the act of the Prothonotary in issuing a certificate is a 'decision' for the purposes of the Administrative Decision (Judicial Review) Act 1977 (Cth) - Whether the 'decision' is reviewable under the inherent jurisdiction of the Court or under O 56 of the Supreme Court (Civil Procedure) Rules 2008 - Whether any review of a 'decision' of the Prothonotary must take place under the Administrative Decision (Judicial Review) Act 1977 (Cth).

JUDICIAL REVIEW - Cross-vesting - Special federal matter - Whether a review of the issue by the Prothonotary of a certificate under the Foreign Judgments Act 1991 (Cth) is a 'special federal matter' under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - Whether there are 'special reasons' for the matter to be determined by the Supreme Court.

PRACTICE AND PROCEDURE - Death of a party - Two applicants seeking appointment as sole representative of the estate in the proceeding - Appointment of representative under r 16.03 of the Supreme Court (General Civil Procedure) Rules 2008.

1 The applications made in this proceeding (the '1998 proceeding') involve challenges to both the validity and correctness of certificates issued by the Prothonotary of this Court purportedly pursuant to s 15 of the Foreign Judgments Act 1991 (Cth). The certificates, which purport to be certificates as to the finality of judgments and orders obtained in the Supreme Court of Victoria, have been sought for use (and in the case of the first certificate, used) in proceedings brought by the second to fifth plaintiffs in courts in the Czech Republic.

2 The substantive issue raised by the present applications concerns the interplay between the provisions of the Foreign Judgments Act 1991 (Cth) empowering the issue of certificates of judgments obtained in Australian courts, and the provisions of the Bankruptcy Act 1966 (Cth) that operate to convert the rights of judgment creditors upon the making of a sequestration order. The applicants, Mrs Judith Talacko and Mr David Findlay respectively, have separately brought applications seeking to challenge the exercise of power by the Prothonotary, and the validity of the certificates issued at the request of the second to fifth plaintiffs, relying principally on s 58(3) of the Bankruptcy Act 1966 (Cth) which they contend operates to impose a stay of execution for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth).[1] There is also a procedural issue raised as to whether a representative of the estate of the defendant, the late Mr J E Talacko, should be appointed for the limited purpose of agitating the substantive issue, and if so, which of the two candidates who have consented to do so, namely Mrs Talacko and Mr Findlay, should be appointed. In response, the second to fifth plaintiffs contend that any application to challenge the validity of the certificates ought be made under either the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') or under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (the 'General Civil Procedure Rules').

3 In order to understand the basis on which the second to fifth plaintiffs apparently sought the issue of the certificates, the use they have made of the certificates in various proceedings in the Czech Republic, and the several bases on which the certificates are now sought to be challenged, it is necessary to recount in some detail the background to this proceeding and the other substantive litigation on foot between the parties over many years. Before doing so, however, it is convenient to outline the statutory framework established under the Foreign Judgments Act 1991 (Cth).

The Foreign Judgments Act 1991 (Cth)

4 The long title for the Foreign Judgments Act 1991 (Cth) states that it is '[a]n Act relating to enforcement of foreign judgments in the Commonwealth, and for related purposes.' The Act was intended to 'provide a framework for the enforcement of foreign civil judgments in Australia by a simple registration process' that would 'replace existing State and Territory legislation governing registration and enforcement of foreign civil judgments in State and Territory supreme courts.'[2]

5 When the Foreign Judgments Act 1991 (Cth) was enacted, it replaced the existing State and Territories-based system of registration.[3] In Re Cryonic Medical,[4] Nettle J observed that for the most part, the Act was enacted to overcome the difficulties of enforcing a foreign judgment at common law, and sought 'to provide a framework for the enforcement of foreign civil judgments in Australia by a simple registration process, and to give effect to arrangements agreed with New Zealand as part of closer economic relations and an agreement entered into with the United Kingdom in 1990.'[5]

6 One of the 'related' purposes of the Foreign Judgments Act 1991 (Cth) was to provide for the issue of certificates pertaining to judgments obtained in Australian courts. Relevantly, s 15 of the Act provides for the issue of certificates 'where an application is duly made by a judgment creditor who wishes to enforce in a country a judgment that has been given in an Australian court'. Section 16 provides for the making of regulations and s 17 effectively confirms that the power to make rules regulating the practice and procedure of a superior court extends to making any rules, not inconsistent with the Act or regulations made pursuant to it, 'prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act' including '(b) prescribing the matters to be proved on an application for the registration of a judgment and for regulating the mode of proving those matters'.

7 Mr Jan Emil Talacko ('Mr J E Talacko') is the sole defendant to the 1998 proceeding. In October 1998, the second to fifth plaintiffs, who are named as respondents to each of the present applications, together with other members of the wider Talacko family commenced proceedings against Mr J E Talacko alleging causes of action for breach of contract, breach of trust and breach of fiduciary duty in respect of dealings with a number of properties in Europe. These properties were apparently properties that were owned by Mr J E Talacko's parents prior to them being seized by communist regimes in Czechoslovakia and East Germany. Terms of settlement were entered into on 23 February 2001, by way of settlement of the 1998 proceeding, but when Mr J E Talacko breached his obligations under those terms of settlement the plaintiffs successfully applied for reinstatement of the 1998 proceeding.[6] Subsequently, on 11 December 2009, final orders were made by Justice Kyrou requiring Mr J E Talacko to pay the plaintiffs the total sum of € 10,073,818.[7] On 16 September 2013, the plaintiffs also obtained an order for costs in a substantial money sum against Mr J E Talacko. Both the judgment and the costs order remain unsatisfied.

8 Mr J E Talacko brought an appeal in respect of the decision and final orders made by Kyrou J but it was dismissed by the Court of Appeal on 18 March 2011.[8] An application for special leave to appeal from that decision was dismissed by the High Court of Australia on 28 October 2011.[9]

The various proceedings commenced in the Czech Republic on 4 November 2011

9 Following the dismissal of Mr Talacko's application for special leave, the Czech lawyers acting for the second to fifth plaintiffs commenced two petition proceedings in the District Court for Prague 1. The first petition proceeding, No 49 EXE 2107/2011-73 was filed on 4 November 2011 against Mr J E Talacko. The second, petition proceeding No 68C 139/2011, was filed on the same day against David Talacko and Paul Talacko, who are sons of Mr J E Talacko and his wife, Mrs Judith Talacko, and resident in Prague.

10 The nature of these two petition proceedings has been the subject of affidavit evidence from Mr Josef Hlavicka, the Czech lawyer acting for the second to fifth plaintiffs.[10] In an affidavit of Mr Hlavicka sworn on 9 November 2012 (and filed in the bankruptcy proceedings in the Federal Court),[11] he describes petition proceeding No 49 EXE 2107/2011-73 as an 'execution petition', that was filed against Mr J E Talacko:

in order to enforce the obligation to pay the Clients the amount of EUR 4,740,830, the amount of EUR 296,079 and the amount of AUD 81,914.40 on the basis of final, conclusive and enforceable decisions of the Supreme Court of Victoria at Melbourne . . . The execution petition was lodged to the Court Executor JUDr. Tomas Vrana, Executor's office at Prerov on 4 November 2011. Subsequently the Executor's office filed a petition to the District Court of Prague 1 to decide on the enforcement.[12]

11 Mr Hlavicka describes the second petition proceeding, No 68C 139/2011, as a petition to contest the effectiveness of 'donation agreements' made between Mr J E Talacko and his sons, whereby he transferred to them by way of gift all of his interest in certain properties in the Czech Republic and elsewhere that were in issue in the equitable compensation proceedings then pending before Kyrou J.[13] Mr Hlavicka says, that this petition, if successful, would enable the second to fifth plaintiffs to claim 'their enforceable rights' against David and Paul, being 'the persons to whom Jan Talacko transferred a property by way of a gift with the intention to curtail the creditor's (Clients) claim' and that '[i]n this way, it is possible to contest [Mr J E Talacko's] legal acts made during the last three years.'[14]

Sequestration order made on 7 November 2011 against the estate of Mr J E Talacko

12 On 7 November 2011, several days after the petition proceedings were filed in the Czech Republic, Mr J E Talacko was made bankrupt. The Federal Court of Australia (North J) made a sequestration order against his estate upon application made by the second to fifth plaintiffs, Mr J E Talacko having failed to pay the judgment debt and other sums due to them. (It appears that initially, application was made for the appointment of an interim or temporary trustee, and orders were made, but they were later annulled.[15])

13 In the present proceeding, the applicants contend that once the sequestration order was made by the Federal Court, the provisions of the Bankruptcy Act 1966 (Cth) were enlivened and operated to affect the ability of the second to fifth plaintiffs, as judgment creditors, to enforce the judgments and orders made in the 1998 proceeding against the bankrupt estate of Mr J E Talacko.

14 The second to fifth plaintiffs dispute that position, and as will be seen below, they rely upon leave granted by North J in the bankruptcy proceedings on 10 December 2012 'nunc pro tunc from 7 November 2011' as permitting them to continue to take further steps in the petition proceedings in the Czech Republic.

The first certificate issued by the Prothonotary dated 4 July 2012

15 At the request of the second, third and fourth plaintiffs in the 1998 proceeding,[16] the Prothonotary issued a document entitled 'Certificate of Finality of Judgments and Orders' dated 4 July 2012 (the 'first certificate'). The first certificate was issued by the Prothonotary purportedly pursuant to the power conferred by Chapter II, Order 11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (the 'Miscellaneous Civil Proceedings Rules'). Order 11 provides the machinery provisions that apply in this Court for the registration of judgments under the Foreign Judgments Act 1991 (Cth). Rules 11.10 and 11.11 set out the procedure that applies where a judgment creditor wishes to enforce in a foreign country a judgment that has been given by the Supreme Court of Victoria and seeks the issue of a certificate under s 15 of the Foreign Judgments Act 1991 (Cth) in order to do so.

16 Section 15 provides:

Issue of certificates of judgments obtained in Australian courts

(1) Subject to this section, where an application is duly made by a judgment creditor who wishes to enforce in a country a judgment that has been given in an Australian court, the Registrar of the court must issue to the judgment creditor:

(a) a certified copy of the judgment; and

(b) a certificate with respect to the judgment containing such particulars including:

(i) the causes of action to which the judgment relates; and

(ii) the rate of interest (if any) payable on any amount payable under the judgment;

as are prescribed by the regulations or by Rules of Court.[17]

(2) An application may not be made until the expiration of any stay of enforcement of the judgment in question.

(3) Nothing in subsection (1) prevents a fee being imposed in respect of the issue of the documents referred to in that subsection.

17 Section 3 provides that for the purposes of the Act, the expression 'Registrar', in relation to a court, means 'the person who holds, in relation to that court, the office of, or the office equivalent to the office of, Registrar or Clerk.' Accordingly, in the context of the Supreme Court of Victoria, the Prothonotary is a 'Registrar' for the purposes of the Act.

18 Rule 11.10 requires that an application under s 15(1) be made in the proceeding in which the judgment was obtained, here relevantly the 1998 proceeding. Such an application is required to be made by the judgment creditor filing a draft of the certificate to be given by the Prothonotary under r 11.11(c),[18] together with an affidavit deposing to such information as will enable the certificate to be granted: r 11.10(3). It is not in dispute that the application made to the Prothonotary by the second to fifth plaintiffs in mid-2012 did not follow the procedure set out in rr 11.10-11.11. The process by which the first certificate was sought and prepared is described by Mr Stephen Howells of counsel in an affidavit sworn by him dated 2 June 2014, which was notarised for use in the petition proceeding in the Czech Republic.[19] Therein Mr Howells states:

I sought a Certificate of Finality on behalf of my clients. I was asked by the Prothonotary to provide a draft to him of the terms of the Certificate that the Plaintiffs sought from him. [The Prothonotary] and his staff carefully considered the draft, made alterations to it and then executed it. It is common practice in all common law jurisdictions for Counsel to be asked by the Court to prepare drafts of the orders and certificates that are sought.[20]

19 In an affidavit of Mr David Paul Phelan, the solicitor for the second to fifth plaintiffs, sworn on 22 December 2014 and filed in this proceeding, Mr Phelan summarises the events that led to them seeking and obtaining the first certificate and using it in the Czech Republic. Mr Phelan deposes that in October 1998 Mr J E Talacko transferred his interest in the matrimonial property at 312 Glenferrie Road, Malvern to Mrs Talacko for no consideration, and in May 2009 he transferred by way of donation his interests in his overseas properties to his sons, David and Paul, with the result that he was effectively left without any assets. Accordingly, Mr Phelan says, it was 'necessary to enforce the judgment and orders of Justice Kyrou against the properties in Europe' and on 4 November 2011, an 'execution petition' No 49 EXE 2107/2011-73 was lodged in the Czech Republic on behalf of the second to fifth plaintiffs.

20 Relevantly for present purposes, the first certificate refers to the judgment of Kyrou J dated 24 November 2009 and the order as to costs and interest made by his Honour on 11 December 2009 as being 'FINAL, BINDING AND ENFORCEABLE according to law' by reason of certain stated facts, matters and circumstances, including the dismissal of Mr J E Talacko's appeal to the Court of Appeal and his application made to the High Court of Australia for special leave to appeal. Further, it states that 'the said Judgment and Order have now passed into final, binding and enforceable effect, and they are not subject or amenable to any further or other appeal, review, remedy or relief.' Reference is then made in paragraphs 9 and 10 to the Bankruptcy Act 1966 (Cth) and the Income Tax Assessment Act 1936 (Cth) but the certificate states that neither of those Acts operates 'to affect the finality or the binding and enforceable effect of the said Judgment and Order.' [21]

The use made of the first certificate in the proceedings in the Czech Republic

21 In his affidavit sworn on 9 November 2012, Mr Hlavicka says that the first certificate issued by the Prothonotary has been filed on behalf of the second to fifth plaintiffs in the execution petition proceedings in the Czech Republic 'to prove the finality and enforceability of the judgments.'[22] Further, he says the 'Court also asked the plaintiffs to submit evidence proving that the Australian judgment might be recognized in the Czech Republic' and in September 2012 the Ministry of Justice of the Czech Republic sent to the Court a letter from the Attorney-General for Australia on the issue of recognition and enforcement of foreign judgments in Australia.[23]

22 Mr Hlavicka says that on 18 October 2012 he received the decision of the Appellate Court of the District of Prague 1 approving the enforcement of the specified judgments of the Supreme Court and thus, 'the decision approving the enforcement entered into legal force.'[24] Mr Hlavicka also mentions that Mr J E Talacko commenced an appeal from a decision made in petition proceeding No 49 EXE 2107/2011-73, which is presently before the Supreme Court of the Czech Republic, being proceeding No 30 Cdo 3753/2012.

The gist of the rival arguments advanced in the petition proceedings in the Czech Republic about the effect of Mr Talacko's Australian bankruptcy

23 In his affidavit sworn on 9 November 2012 Mr Hlavicka also summarises the gist of the arguments advanced by Mr J E Talacko in the petition proceedings in the Czech Republic, and his response. He says that Mr J E Talacko had indicated that he intended to object to both the enforcement and donation petition proceedings on the basis of his bankruptcy, contending first, that evaluation of the issue of enforceability of a foreign judgment is to be carried out by the state where the decision was issued, and secondly, that by reason of s 58(3) of the Bankruptcy Act 1966 (Cth) it is not possible for a creditor to enforce any remedy against the person or property of the bankrupt in respect of a provable debt.[25]

24 Mr Hlavicka's response to those arguments is to the effect that 'the [Australian] Bankruptcy order does not negatively affect either the finality or the enforceability of the Australian judgments in the Czech Republic' because '[t]he Bankruptcy Act 1966 operates directly upon a bankrupt who is present in Australia and directly only upon assets located in Australia.'[26] Further, he explains that as the transfer of the Czech properties from Mr Talacko to his sons took place on 2 May 2009, when the application for registration of the transfer to the sons was filed, the statutory period of three years for contesting the transfer has passed and so the Australian Trustee in Bankruptcy would be time-barred if he sought to commence a similar proceeding contesting the transfers of the properties to the sons. Further, Mr Hlavicka says, in any event, it is 'debatable whether the Australian Trustee in Bankruptcy may act on the territory of the Czech Republic in its capacity as bankruptcy trustee (i.e., as a special body, not as a natural person).'[27] Mr Hlavicka summarises the position, stating that in his opinion, 'currently there is no viable way for the Australian bankruptcy trustee to contest [Mr J E Talacko's] donation of properties to his sons before Czech courts.'[28]

25 In an affidavit sworn by Mr Phelan, the solicitor for the second to fifth plaintiffs, on 22 December 2014 for the purposes of the current applications, Mr Phelan refers to the opinion expressed by Mr Hlavicka to the effect that an Australian trustee in bankruptcy would not have the powers of a Czech bankruptcy trustee because such powers are vested in trustees appointed by the Czech courts, and then expresses his own opinion:

1. His [Mr Hlavicka's] conclusion is consistent with the conclusion that I have reached as to the status of the Bankruptcy Act in the Czech Republic based on reports from my clients as to the advice they have received about Czech law. I have concluded that the Bankruptcy Act is not recognised by the Czech Courts and that [Mr Talacko's] bankruptcy can have no impact on proceedings in the Czech Republic. I am reinforced in that conclusion from the following finding which commences at the foot of page 4 of the decision of the Municipal Court of Appeal for the City of Prague made on 4 October 2012, as follows:

It can be agreed with the authorised parties that the assets of the obligated party in the Czech Republic cannot be the subject matter of insolvency proceedings held in Australia in the absence of an international treaty, and therefore, launching insolvency proceedings cannot have any relevant impact on the distrainment proceedings in the Czech Republic.

I note that my clients are recorded as being the "authorised parties" at page 1 of the decision and that [Mr Talacko] is the obligated party. ...

1. The Kyrou judgment has been recognised for enforcement by the Municipal Court of Appeal for the City of Prague ... I am informed by my clients that the decision of the Municipal Court of Appeal for the City of Prague made on 4 October 2012 is the subject of an appeal by [Mr Talacko] to the Supreme Court of the Czech Republic and that no decision has been delivered by that Court. ...

1. The Second to Fifth Plaintiffs are not in a position to enforce the Kyrou judgment and this will remain the case until it is recognised in the Czech Republic and all appeals have been finalised. The question of recognition is before the Supreme Court of the Czech Republic. In the circumstances, the Second to Fifth Plaintiffs will [sic. not] take any step after the date hereof to enforce the Kyrou judgment unless the step has been specifically authorised by an order of the Federal Court under section 58(3) of the Bankruptcy Act.[29]

26 In an affidavit of Ms Lucie Dolanska Banyaiova, who was the legal representative for Mr J E Talacko in the proceedings in the Czech Republic, sworn on 16 December 2014 and filed in support of the present application made by Mrs Talacko, Ms Banyaiova deposes as to the key steps which have been taken in those proceedings since the first certificate was issued by the Prothonotary on 4 July 2012. In summary, Ms Banyaiova says as follows:

(a) On 16 July 2012, the second to fifth plaintiffs filed a motion to the Municipal Court in Prague in proceedings file No. 64 Co 142/2012, being the appellate court reviewing the correctness of the enforcement order issued on 3 January 2012 by the District Court in Prague 1 under No. 49 EXE 2107/2011-73, responding to the Court's request of 13 June 2012 that they provide evidence as to the finality and enforceability of the orders made by the Supreme Court of Victoria. In their motion to the Municipal Court, the second to fifth plaintiffs submitted that the Prothonotary's first certificate 'clearly confirms the finality and enforceability of the orders of the Supreme Court of Victoria in Melbourne the enforcement of which is sought.'[30]

(b) By resolution dated 4 October 2012, the Municipal Court in Prague confirmed the correctness of the enforcement order issued by the District Court in Prague 1 under No. 49 EXE 2107/2011-73 and confirmed the enforcement of the orders of the Supreme Court of Victoria. In its reasoning, the court specifically referred to the Prothonotary's first certificate 'stating that it follows from this Prothonotary's Certificate that the [second to fifth plaintiffs] duly certified and proved the finality and enforceability of the said orders.'[31]

(c) Mr J E Talacko filed an extraordinary appeal to the Supreme Court of the Czech Republic on 6 November 2012, requesting the Supreme Court to cancel the ordered enforcement of the orders of the Supreme Court of Victoria. The arguments advanced on behalf of Mr Talacko were to the effect that the orders of the Supreme Court of Victoria are not enforceable due to bankruptcy proceedings against him in the Federal Court of Australia. The Supreme Court of the Czech Republic has not rendered its decision as yet.[32]

(d) On 2 November 2012, Mr Talacko filed a separate plea to the District Court of Prague 1 seeking to stay the enforcement proceedings relating to the orders of the Supreme Court of Victoria. Once again, one of the key issues advanced by him was that the orders of the Supreme Court of Victoria are not enforceable due to the bankruptcy proceedings against Mr Talacko in the Federal Court of Australia. The District Court of Prague has not made any determination on the merits of this plea as yet.[33]

(e) Since the Municipal Court in Prague confirmed the enforcement of the orders of the Supreme Court of Victoria, the bailiff has issued several execution orders for payment of the due enforced sums by way of sale of property of Mr Talacko. According to Ms Banyaiova:

Specifically, the bailiff ordered the forced sale of real estate of Jan Emil Talacko located in Stredocesky kraj (mid-Bohemian region) district Benesov, town of Porici nad Sazavou, two plots of land one No. 1524/2 of the area of 1513 m2 and the other No. 1524/5 of the square area 16 m2. The forced sale of this land has not occurred so far. In addition, the bailiff confiscated in November 2012 the sum of approx. CZK 295,000.00 (approx. AUD 16,732.00) from the account of Jan Emil Talacko.[34]

27 Ms Banyaiova deposes that because the feature of enforceability is one of the 'key and fundamental prerequisites for enforcement of any judicial decisions in the Czech Republic' there are, in her opinion:

reasonable grounds for concluding that, under Czech law, that the Municipal Court in Prague could have denied the enforcement of the orders issued by the Supreme Court of Victoria in Melbourne and the above enforcement steps would not have been possible if the Prothonotary's Certificate did not refer to the order of Justice Kyrou referred to in paragraphs 7, 8 and 9 therein as being "final, binding and enforceable".[35]

In my professional opinion, there are reasonable grounds for concluding that, under Czech law, unless the Prothonotary's Certificate is set aside or is varied to remove the references in paragraphs 7, 8 and 9 therein to Justice Kyrou's order being "enforceable", further steps will be taken by the bailiff in the Czech Republic by way of enforcement of Justice Kyrou's order.[36]

29 In a supplementary affidavit sworn on 18 December 2014, following the filing of Mrs Talacko's application in this proceeding, Ms Banyaiova expresses her professional opinion that if the Prothonotary's first certificate is to be set aside or amended, this should happen as soon as possible, because otherwise the bailiff will continue taking enforcement action against the assets falling into Mr Talacko's estate, including forcing a sale of the Bohemian real estate.[37]

30 In Mr Phelan's affidavit sworn on 22 December 2014, he responded to and addressed Ms Banyaiova's concern. Mr Phelan stated that his clients had informed him that it was not expected that the bailiff would take any enforcement action until after Mr J E Talacko's appeal to the Supreme Court of the Czech Republic had concluded. Further, he said that he had written to their Czech lawyers requesting that they inform the bailiff that his clients 'do not wish to have any enforcement steps taken until the outcome of the Supreme Court appeal is known and further leave is obtained under section 58 of the Bankruptcy Act (Cth).'[38]

Orders made by North J on 10 December 2012 granting leave to take further steps

31 On 10 December 2012, on the application of the second to fifth plaintiffs and with the consent of Mr J E Talacko's trustee in bankruptcy, Justice North of the Federal Court of Australia made a number of orders concerning the taking of further steps in relation to the bankrupt estate of Mr J E Talacko. Among other things, the orders made in the bankruptcy proceedings specifically addressed the continued pursuit of the execution petition proceedings against Mr Talacko in the Czech Republic. In paragraph 3 of his orders, his Honour granted leave, nunc pro tunc from 7 November 2011, permitting the plaintiffs to continue to take further steps but 'provided that no step be taken to enforce any judgment against [Mr J E Talacko] without the prior leave of the Federal Court of Australia in its bankruptcy jurisdiction.' The transcript of the hearing on that day records counsel for the second to fifth plaintiffs, Mr Howells, informing the Court about the substance of the relief sought in proposed order 3 concerning the overseas properties.[39] With the consent of counsel for the trustee in bankruptcy, Mr Bornstein, orders were made accordingly by his Honour.[40]

Challenge to the validity of the first certificate

32 It is against this background that an application was issued on behalf of Mr J E Talacko in the 1998 proceeding seeking to challenge the validity of the first certificate. The solicitor who was acting for Mr J E Talacko prior to his death, Mr Joseph Guss,[41] says that the first certificate only came to light in the course of the conduct of proceeding No 49 EXE 2107/2011-73 and associated proceedings in the Czech Republic on or about March 2014. The second to fifth plaintiffs dispute this timing, but Mr Guss says the certificate first came to his attention on 26 March 2014 when a copy of it (but without the attachments referred to in paragraph 6 thereof) was provided to him by the Czech lawyers acting for Mr J E Talacko.

33 On 30 October 2014, Mr Guss in his (then) capacity as solicitor for Mr J E Talacko issued a summons directed to the Prothonotary and the second to fifth plaintiffs seeking orders in relation to the first certificate, pursuant to Rule 11.12 of the Miscellaneous Civil Proceedings Rules and s 15 of the Foreign Judgments Act 1991 (Cth). In effect, the summons sought to have the certificate declared invalid and an order that it be quashed, cancelled or set aside or alternatively that the Prothonotary be ordered to amend it to comply with the law. The application was listed for hearing on 6 November 2014 but in the meantime, on 3 November 2014, Mr J E Talacko passed away.

34 It appears that Mr Talacko died intestate, having revoked all earlier wills.

35 On 18 November 2014, McDonald J, before whom the trial of the 2009 proceeding was shortly to take place, made orders on the return of Mr J E Talacko's summons. His Honour adjourned the summons for hearing on 8 December 2014, in order that Mr Guss could inform his Honour's Associate and the second to fifth plaintiffs if he had instructions to appear on behalf of any party to whom Mr J E Talacko's interest in the 30 October 2014 summons had been assigned, transmitted or devolved.

36 At the adjourned hearing on 8 December 2014, McDonald J made orders adjourning the summons for further hearing on a date to be fixed. Later on 8 December 2014 a fresh summons was issued by Mr Findlay as applicant, directed to the Prothonotary and the second to fifth plaintiffs as respondents. The summons sought orders pursuant to r 16.03(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (the 'General Civil Procedure Rules') that Mr Findlay be appointed to represent the estate of Mr J E Talacko, deceased, for the purpose of the proceeding commenced by Mr Talacko in respect of the first certificate; alternatively, pursuant to r 16.03(1)(b), that the Court may proceed in the absence of a person to represent the estate of the deceased.

37 An affidavit of Mr Guss, sworn on 8 December 2014 was filed in support of Mr Findlay's application. Therein Mr Guss deposes as to the history of the personal and professional relationship between Mr Findlay and Mr J E Talacko, which dates back to their first meeting in 1964, including his role as solicitor for Mr Talacko in the 1998 proceedings between about 1993 and 2005 and as a consultant from late 2011, and the appointment of Mr Findlay as Mr Talacko's attorney under an enduring power of attorney on 21 March 2012. His affidavit also exhibits a consent from Mr Findlay pursuant to r 16.03(1), consenting to his appointment as representative of the estate of Mr Talacko for the purpose of seeking orders in respect of the first certificate.

38 On 16 December 2014, a summons in similar form was issued on behalf of Mrs Judith Talacko, the widow of Mr J E Talacko. Mrs Talacko sought orders that she be appointed to represent the estate of her husband pursuant to r 16.03(1) and for the purpose of conducting an application for declarations that the Prothonotary exceeded his authority in issuing the first certificate and that the certificate is invalid and be set aside; alternatively for an order that the Prothonotary amend the certificate as the Court deems appropriate.

39 An affidavit of Mr Jonathan Guy Joseph, the solicitor for Mrs Talacko, sworn on 16 December 2014 was filed in support of her application. In his affidavit, Mr Joseph deposes as to Mrs Talacko's concern that the statements made in the first certificate, to the effect that the orders made by Kyrou J are 'FINAL, BINDING AND ENFORCEABLE according to law', are misleading and 'would mislead the Czech courts in the Czech proceedings into believing that the provisions of the Bankruptcy Act 1966 (Cth) do not affect the enforceability of the Kyrou orders.'[42] Further, Mr Joseph says he is instructed by Mrs Talacko, who presently resides in the Czech Republic, that the plaintiffs 'are seeking to use the Prothonotary's Certificate in the Czech proceedings to seek enforcement against Jan'.[43]

The hearing of the applications before Daly AsJ

40 The applications filed in December 2014 by each of Mr Findlay and Mrs Talacko to be appointed as the sole personal representative of the estate of Mr J E Talacko pursuant to r 16.03 were heard by Daly AsJ on 22 December 2014. The question for her Honour to determine was whether she should appoint either of the applicants as the representative for the purpose of challenging the first certificate, and if so, which of them.

41 The second to fifth plaintiffs opposed the applications, primarily on the basis that the summonses and any challenge to the validity of the first certificate were incompetent. At the hearing before Daly AsJ, the second to fifth plaintiffs produced an amended notice of contention directed at each of the applicants wherein they contended that each application is incompetent because:

(a) it seeks the review of a decision made under a Commonwealth enactment being a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies and the jurisdiction of this Honourable Court is therefore denied by section 9 of that Act.

(b) neither Order 16 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules nor Rule 16.03 have any application to the present matter.

42 The primary submissions of the second to fifth plaintiffs were to the effect that the Court is functus officio in the 1998 proceeding and the summonses seek relief that could only be obtained under the ADJR Act or Order 56 of the General Civil Procedure Rules.[44] Aside from questioning the competency of the summonses, they also submitted that it would be inappropriate for her Honour to make an appointment under r 16.03, at least at this time. Her Honour summarised their submission as follows:

Under s 19 of the Administration and Probate Act 1958 (Vic), the property of the estate of Jan Talacko vests in the State Trustee, and the State Trustee ought to be notified of this application. Mr Findlay has absolutely no interest in this dispute, and his application ought to be dismissed. Mrs Talacko may have an interest, albeit uncertain at this stage, and her application to be appointed as a representative ought to be viewed in the light of the allegations of fraud and conspiracy made against her in the current proceeding that she has been involved in a fraud.[45] As such, Mrs Talacko's application, if not dismissed for the substantive reasons advanced by the plaintiffs, ought to be stood over to be heard and determined by the trial judge in the current proceeding [i.e., the 2009 proceeding to be heard by McDonald J in March 2015] in order to assess the merits of her application in the light of any findings made about her conduct. Given the undertakings proffered by the plaintiffs to refrain from taking any enforcement action with respect to the Czech proceedings for the time being, there is no prejudice in having these matters held over to that time.[46]

43 The applicants rejected the second to fifth plaintiffs' submissions that the summonses were incompetent. They contended that the Court has an inherent jurisdiction to supervise the conduct of officers of the Court. Further, they argued the issuing of the certificate is a 'ministerial act' of the Prothonotary, relying upon the well-known passage in the High Court's judgment in Griffith v Tang,[47] and thus is not a decision within the meaning of the ADJR Act, or otherwise amenable to judicial review. The applicants also maintained that the Court is not functus officio because the first certificate was issued by the Prothonotary in the 1998 proceeding, as required by the Rules.

44 On 4 February 2015, Daly AsJ delivered her ruling, dismissing both summonses and made orders accordingly. Her Honour formed the view that the applications should be dismissed on the grounds that each of the summonses is incompetent. Her Honour found that:

Even if the Court is not functus officio in the 1998 proceedings, any application to challenge the validity of the Certificate ought to be made either to the Federal Court under the ADJR Act, or under O 56 of the Rules. I accept the submissions of senior counsel for the plaintiffs that even the more truncated relief proposed to be sought by Mrs Talacko, that the Certificate be amended, must amount to relief in the form of certiorari or mandamus, and as such, if sought in this Court, must be sought by a proceeding brought under O 56 of the Rules. After all, given the provisions of the Foreign Judgments Act, I doubt that the power rests with a Judge of this Court to amend the Certificate: rather, it is more likely that the Court would exercise its supervisory jurisdiction if it was thought fit to do so by directing that the Prothonotary amend the Certificate: that is, an order in the nature of mandamus.[48]

45 Her Honour also said that while it was not strictly necessary for her to make a finding that any challenge to the validity of the certificate must be brought under the ADJR Act, or alternatively must be brought in this Court, or could be launched in either venue, she thought it 'strongly arguable that the decision to issue the Certificate, and in particular the decision to include the statements made which are complained of by the applicants, is a decision within the meaning of s 3 of the ADJR Act.'[49] In so doing, she rejected the applicants' contention that in issuing the certificate what the Prothonotary did was 'ministerial' in nature. Rather, she formed the view that in issuing the certificate in the form in which he did, 'the Prothonotary was required to exercise some degree of discretion, judgment or skill.'[50]

46 Notices of Appeal against her Honour's ruling and orders were filed by Mrs Talacko on 18 February 2015, and by Mr Findlay on 25 February 2015, following which an appeal book common to both appeals was prepared and filed. While those appeals were pending, the solicitors for the second to fifth plaintiffs made contact with the Prothonotary, apparently without the knowledge of the solicitors for Mr Findlay or Mrs Talacko, and arranged for the issue of an amended certificate.

The Prothonotary's second certificate dated 23 February 2015

47 By letter dated 1 April 2015, Mr Phelan wrote to the solicitors for each of the parties enclosing 'copy certificate of finality of judgments and orders dated 23 February 2015'.[51] The document enclosed with the letter was entitled 'Amended Certificate of Finality of Judgment and Orders', and was signed by the Prothonotary and sealed with the seal of the Court dated 23 February 2015 (the 'second certificate'). The heading of the second certificate states that '[t]his certificate is an amendment and replaces in its entirety' the first certificate issued by the Prothonotary.[52]

48 The relevant amendments were not marked-up and the accompanying letter did not disclose the substance of them or describe them in any way. Accordingly, Mr Joseph arranged for a marked-up version to be prepared which shows the changes made to the Prothonotary's Certificate. In summary, the mark-up shows that, for the most part, the amendments so made remove the expression 'enforceable' where used throughout the certificate: so that the phrase stating that the judgments and orders 'are final, binding and enforceable according to law' now reads 'are final, conclusive and binding', and the orders of Kyrou J are now said to be 'at an end except for enforcement of the said Judgment and Order and are final conclusive and binding'. Further, the reference in paragraph 9 of the first certificate to the operation of the Bankruptcy Act 1966 (Cth) and the Income Tax Assessment Act 1936 (Cth) has been deleted. By way of insertion, the second certificate now makes reference to a further order made by Kyrou J on 16 September 2013 (being after the first certificate had issued).[53]

49 Mr Joseph says that he was not informed by the solicitor for the second to fifth plaintiffs, and was not otherwise aware, that the amended (second) Prothonotary's Certificate was being sought or had been applied for or issued.[54] He says that at no time during the trial of the 2009 proceeding before McDonald J in March 2015 did the second to fifth plaintiffs or any other party mention the existence of the second certificate either formally to the Court or, as best he knows, informally between practitioners. Once he became aware that the second certificate had been issued, Mr Joseph arranged for a legal trainee to search the most recent (hard copy) Court file for the 1998 proceeding and obtain copies of all documents pertaining to its issue. Relevantly, that search revealed only a letter from the solicitor for the second to fifth plaintiffs to the Prothonotary dated 6 February 2015, being shortly after Daly AsJ pronounced orders, enclosing a document entitled 'draft proposed amended certificate' together with the annexures marked 'A' to 'K' thereto.

50 The letter from the solicitor for the second to fifth plaintiffs to the Prothonotary which accompanied the 'draft proposed amended certificate' commences by referring to the most recent order of Kyrou J, noting that interest on that judgment accrues at $771.03 per day, and says the second to fifth plaintiffs now seek 'a replacement certificate that contains a reference to the latest judgment by Mr Justice Kyrou.'[55] It also refers to the recent challenges to the first certificate by Mr Findlay and Mrs Talacko, noting that 'they have not resulted in any order affecting the Certificate as yet,' and to the ruling made by Daly AsJ on 4 February 2015. The letter also records that the first certificate has been relied upon by the second to fifth plaintiffs in the Czech Republic, as follows:

The Certificate has been relied upon by our clients in the Czech Republic since 2012. Reliance on the Certificate has also been referred to in a decision ("Resolution") of the Supreme Court of the Czech Republic dated 18 December 2014, which we received on 5 February 2015.

We can provide a copy of the Resolution if required. Consequently, it is important that there be certainty as far as the content of the Certificate is concerned.

While we do not make any admission about the criticisms that Mr Guss has made, we have formed the view that in order to ensure that no embarrassment is caused either in the Czech courts or in this Court, we should ask you to issue a replacement certificate that deals with the matters referred to above and also addresses Mr Guss's criticisms to the extent necessary to discourage or pre-empt any further proceedings. We note also that at the hearing before Associate Justice Daly on 22 December 2014 Senior Counsel for Judith Talacko informed the Court that his client "would only be seeking that the Court amend the Certificate ...", and we refer you to paragraph 17 of Her Honour's Ruling.

Accordingly, we enclose a draft proposed replacement certificate and ask that you let us know through your staff what course of action you propose.

Finally, we note also that no other party has a present entitlement to be heard on the question of making a certificate in these circumstances and that under Chapter II Order 11.11(e) of the Rules you have power to include in the certificate any matter you consider necessary or desirable. There is good reason for this given that such certificates might be intended for use in proceedings abroad and that some explanation of circumstances may be necessary.[56]

51 Following notification of the issue of the second certificate, several letters and emails passed between the parties and the Victorian Government Solicitor's Office ('VGSO'), as solicitor for the Prothonotary, in relation to the pending appeals and the second certificate. The VGSO informed all parties and the Court that in the appeals, as in the proceeding, the Prothonotary does not intend to take an active role and will abide by the decision of the Court.[57]

The issue of the second certificate effectively renders the appeals futile

52 On Friday 24 April 2015, the Court sent an email to the solicitors for the parties, outlining a timetable for the provision of their respective written outlines of submissions and requesting that the parties consult and agree upon a common book of authorities and other materials to be filed by 12 noon on Thursday 7 May 2015, in advance of the hearing of the appeals on Monday 11 May 2015.[58]

53 By letter dated 4 May 2015 the solicitor for the second to fifth plaintiffs wrote to the solicitors for the respective applicants to inform them that because 'Judith Talacko has entirely recast the basis upon which she opposes and challenges the making of the Certificates dated 4 July 2012 and 23 February 2015' they are seeking advice from senior counsel and will likely need to file a further affidavit from the Czech Republic to respond to this new case. In that event, they said, 'there is no prospect that these steps will be completed in sufficient time to permit the appeal to be heard on 11 May 2015.'[59] Each of the solicitors for the respective applicants responded to the effect that they opposed any adjournment of the hearing of the appeals, primarily on the basis that it was not apparent why any further affidavit from the Czech Republic would be relevant. By letter dated 5 May 2015, the solicitor for the second to fifth plaintiffs wrote to the Court, copied to the applicants, and requested that the matter be listed for mention in order that they might make an application for the adjournment of the hearing of the appeals to a date on or after 15 June 2015. The adjournment was said to be necessary 'to supplement the material in the Appeal Book in order to respond to the claim that the Prothonotary could not issue the Certificates.' Further the solicitor for the second to fifth plaintiffs stated that a further affidavit needs to be obtained from their Czech lawyer, Mr Josef Hlavicka, in order to respond to the new case advanced by Mrs Talacko, and '[i]n particular the affidavit will address how the Certificate dated 4 July 2012 has been used in the Czech Republic.'[60]

54 The matter was listed for mention on 7 May 2015 so as to facilitate the second to fifth plaintiffs making their foreshadowed application for an adjournment of the hearing of the appeals in order to permit them to put on further affidavit evidence from Mr Hlavicka. At the mention hearing, Dr Michelle Sharpe of counsel appeared for the second to fifth plaintiffs. When the Court enquired as to what was the substance of the further evidence they proposed to adduce from Mr Hlavicka, Dr Sharpe said:

Well Your Honour I don't think that I have instructions to put anything further that what I have already put,[61] other than that it would contain more detailed evidence of the proceedings currently on foot in the Czech Republic. The nature of those proceedings, that is that in essence they're not enforcement proceedings per say [sic] against the defendant of the judgment, and how that certificate, which has now been replaced, has been used. On my instructions Your Honour I don't think I can submit anything more than that.[62]

55 At the mention hearing, the submissions made by counsel for the second to fifth plaintiffs were to the effect that the second certificate 'entirely replaced' the earlier certificate dated 4 July 2012, that was the subject of the decision made by Daly AsJ, such that the first certificate effectively no longer has any operative force or effect.[63] The applicants accepted that their appeals were rendered futile because there was no longer in existence anything for which the representative orders were sought. However, they said there was now something else in existence, namely the second certificate, and they wished to challenge its contents and validity on the grounds set out in their respective written submissions.

56 Each of the applicants opposed the grant of any adjournment. In essence, they contended that the whole process for the issue of the second certificate was defective because the effect of ss 58 and 82 of the Bankruptcy Act 1966 (Cth) was that there was no judgment extant at the time of issue, the judgment having been converted into a right to prove in the bankruptcy, such that the second to fifth plaintiffs were no longer in the position postulated by s 15 of the Foreign Judgments Act 1991 (Cth). Secondly, they sought special leave under r 77.03(2) of the Supreme Court (General Civil Procedure) Rules[64] to permit them, as representative parties, to proceed under fresh summonses to attack the validity and content of the second certificate before a Judge rather than having to make application in the first instance to an Associate Justice.[65]

57 At the conclusion of argument, the Court indicated that it did not propose to grant any adjournment. The Court was satisfied, however, that notwithstanding that the appeal had effectively been rendered futile, there nevertheless remained a real issue in dispute between the parties concerning the validity and content of the certificates. In those circumstances, the Court indicated that it was disposed to grant special leave and to adjourn the mention hearing to the next day in order that the parties and their legal advisers could consult with a view to devising a procedure that would be capable of being regarded under the Civil Procedure Act 2010 (Vic) as an efficient and fair means for the Court to proceed to hear and determine the essential issue in dispute between them.

The process (as agreed between the parties) to be adopted in respect of the appeals

58 The parties responded by preparing and providing a joint memorandum to the Court setting out the process (as agreed between them) to be adopted in respect of the appeals brought by Mr Findlay and Mrs Talacko in the proceeding.[66] The agreed process was as follows:

1. At the hearing listed for 10.30 am on 8 May 2015, Mr Findlay and Mrs Talacko file fresh summonses in the attached form (the Summonses).
2. The Summonses be made returnable at 10.30 am on 11 May 2015.
3. At the hearing on 11 May 2015, the Court hear the applications brought by the Summonses.
4. At the hearing on 11 May 2015, the parties make submissions in relation to both the procedural aspects of the applications (that is, paragraphs 1 and 2 of the Summonses) and the substantive aspects of the applications (that is, paragraphs 3 to 10 of the Summonses). This will obviate the need for a further hearing concerning the substantive aspects in the event that either Mr Findlay or Mrs Talacko is appointed to represent the estate of Jan Emil Talacko as sought in paragraph 2 of the Summonses.
5. The Court determine the procedural aspects of the applications (that is, paragraph 1 of the Summonses and, if applicable, paragraph 2 of the Summonses) on the basis of the submissions to be made at the hearing on 11 May 2015.
6. In the event that either Mr Findlay or Mrs Talacko is appointed to represent the estate of Jan Emil Talacko as sought in paragraph 2 of the Summonses, the Court determine the substantive aspects of the relevant application (that is, paragraphs 3 to 10 of the relevant summons) on the basis of the submissions having been made at the hearing on 11 May 2015.

59 On 8 May 2015, orders were made dismissing the second to fifth plaintiffs' application for an adjournment and providing for Mr Findlay and Mrs Talacko respectively to issue fresh procedural summonses directed to the Prothonotary and to the second to fifth plaintiffs, and for their applications to be heard on 11 May 2015.[67] The Court also fixed a timetable for the filing of any further submissions by the parties.

60 The Orders of 8 May 2015 also recorded under 'Other Matters' that the second to fifth plaintiffs, by their counsel, gave a fresh undertaking to the Court, in similar terms to the undertaking given before Daly AsJ, that they would not take any further step, whether by themselves or by their servants or agents, to enforce the judgment of Kyrou J dated 11 December 2009 or otherwise seek to use or rely upon the Prothonotary's first certificate dated 4 July 2012 or the second certificate dated 23 February 2015 until the determination of the summonses dated 8 May 2015 or further order.[68]

The hearing of the fresh summonses dated 8 May 2015

61 The summonses issued on behalf of Mr Findlay and Mrs Talacko respectively dated 8 May 2015 sought substantive relief, in addition to the making of a 'representative' order for the purposes of making the application, as follows:

1. A declaration that the Certificate of Finality of Judgments and Orders dated 4 July 2012 (the First Certificate) has been revoked.
2. Further or alternatively, a declaration that the First Certificate is invalid.
3. A declaration that the Prothonotary of the Supreme Court of Victoria exceeded his authority in issuing the Amended Certificate of Finality of Judgments and Orders dated 23 February 2015 (the Second Certificate).
4. A declaration that the Second Certificate is invalid.
5. Further or alternatively, an order that the Second Certificate is set aside.
6. Further or alternatively, an order directing the Prothonotary to amend the Second Certificate in such manner as the Court deems appropriate.

62 At the commencement of the hearing on 11 May 2015, Mr Guss informed the Court that he had given notice of the hearing to State Trustees Limited, as the executor pro tem of Mr J E Talacko's estate,[69] and also to the solicitors for the trustee in bankruptcy. The Court informed the parties that, having read the papers, the Court was satisfied that the matters raised for determination on the summonses are important matters concerning the powers of the Prothonotary to issue a certificate under s 15 of the Foreign Judgments Act 1991 (Cth); secondly, that the case is an appropriate one for a grant of special leave under r 77.03 to permit the applications to be heard by a Judge rather than an Associate Justice; and thirdly, that the procedure agreed between the parties is a fair and efficient one that will promote the stated objectives of the Civil Procedure Act 2010 (Vic).[70] The Court also determined that the most sensible way forward was to hear argument on the substantive matter first and then proceed to determine the issue of representation, noting that this was the approach adopted by Tadgell J in Equity Trustees Executors & Agency Co Ltd v Busst.[71]

Did the Prothonotary have power under s 15 of the Foreign Judgments Act 1991 (Cth) to issue a certificate with respect to the judgment and orders made in the 1998 proceeding?

63 The central question raised for determination on the fresh summonses is whether the Prothonotary's power under s 15 of the Foreign Judgments Act 1991 (Cth) to issue a certificate with respect to the judgment and orders made in the 1998 proceeding was enlivened upon the making of the first and/or second request by second to fifth plaintiffs.

64 Each of Mrs Talacko and Mr Findlay challenge the exercise of the Prothonotary's power and the validity of the certificates issued, relying principally on the scheme of the Bankruptcy Act 1966 (Cth) and its operation. Relevantly, for present purposes, they wish to contend that once a sequestration order was made by North J on 7 December 2011, s 58(3) of the Bankruptcy Act 1966 (Cth) operated to impose a stay of execution of the judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth). That is, the applicants say that the words of s 58(3), prohibiting the enforcement of any remedy against 'the person or the property of the bankrupt in respect of a provable debt', have the effect of staying the enforcement of the judgments and orders in question and are relevantly to be regarded as a 'stay of enforcement' for the purposes of s 15(2).[72] They submit that the orders North J made on 10 December 2012 granting leave do not alter that position because the leave so granted was made expressly subject to the proviso that 'no step be taken to enforce any judgment against [Mr J E Talacko] without the prior leave of the Federal Court in its bankruptcy jurisdiction.' Accordingly, the applicants contend that the application made by the second to fifth plaintiffs for the issue of a certificate under s 15 was not 'duly made by a judgment creditor' who was capable of enforcing a judgment that had been given by an Australian court.

65 The second to fifth plaintiffs, on the other hand, rely upon the leave granted by North J permitting them to continue the petition proceedings in the Czech Republic. They contend that their application for the issue of the first certificate, and for the second certificate respectively was in each case 'duly made by a judgment creditor' because 'leave had indeed been given by the Court pursuant to section 58(3) to take a fresh step in a proceeding'.[73]

Relevant provisions of the Bankruptcy Act 1966 (Cth)

66 Several provisions of the Bankruptcy Act 1966 (Cth) are central to the contentions advanced by the applicants. For convenience, they are set out below:

Section 58(1) provides:

Subject to this Act, where a debtor becomes a bankrupt:

(a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee;

. . .

Section 5(1) defines 'property', 'the property of the bankrupt' and 'provable debt' as follows:

property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.

the property of the bankrupt, in relation to a bankrupt, means:

(a) except in subsections 58(3) and (4):

(i) the property divisible among the bankrupt's creditors; and

(ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt; and

(b) in subsections 58(3) and (4):

(i) the property, rights and powers referred to in paragraph (a) of this definition; and

(ii) any other property of the bankrupt.

provable debt means a debt or liability that is, under this Act, provable in bankruptcy.

Section 58(3) provides:

Except as provided by this Act, after a debtor has become bankrupt, it is not competent for a creditor:

(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

Section 82(1) provides:

Subject to this Division, all debts and liabilities, present and future, certain or contingent, to which a bankrupt was subject all the date of the bankruptcy . . . are provable in his or her bankruptcy.

Section 83(1) provides:

Subject to this Division, a creditor who desires to prove a debt in a bankruptcy shall lodge, or cause to be lodged with the trustee a proof of debt in accordance with this section.

67 The applicants' contentions regarding the construction and operation of s 58(3) of the Bankruptcy Act 1966 (Cth) take, as their starting point, the scheme of the Act and the modern system of bankruptcy law.

The scheme of the Bankruptcy Act 1966 (Cth)

68 In Storey v Lane,[74] Gibbs CJ observed that '[a]n essential feature of any modern system of bankruptcy law is that provision is made for the appropriation of the assets of the debtor and their equitable distribution amongst his creditors, and for the discharge of the debtor from future liability for his existing debts.'[75] Accordingly, his Honour said, the policy of the Bankruptcy Act 1966 (Cth) is 'to assist in ensuring that the assets of the insolvent debtor are distributed in the interests of creditors generally, to prevent one creditor obtaining an undue advantage over the others, and to prevent the scheme of the Bankruptcy Act from being defeated.'[76]

69 More recently, in Re McMaster; Ex parte McMaster,[77] Hill J described the 'modern bankruptcy law' as serving three purposes:

The first is to ensure that the assets of the bankrupt are distributed rateably among creditors. The second, which is interrelated with the first, is to ensure that one creditor does not obtain an undue advantage over other creditors. The third is to bring about the discharge of the debtor from future liability for his existing debts, so that the debtor may start afresh.[78]

70 Section 58 of the Bankruptcy Act 1966 (Cth) plays a critical role in giving effect to these policies. In Re Rose; Ex parte Devaban Pty Ltd,[79] Hill J explained the role of s 58(3) as follows:

The obvious policy behind s 58(3) of the Act was that any proceedings in force at the time of bankruptcy should be stayed and no further proceedings should be commenced so far as they relate to the period prior to bankruptcy unless the Court gives leave. In this way the bankrupt is freed from any claims that might be made in respect to the period prior to bankruptcy and the Trustee in bankruptcy can, if the Trustee accepts the proof of debt, treat a claim against the estate like the claim of all other creditors, so that the assets of the estate are, in due course, divided pro rata among the creditors.

Another reason for staying proceedings or preventing new proceedings from being commenced is to ensure that the Trustee of a bankrupt estate is not put to expense in defending proceedings which the Trustee has no money to defend. On the other hand, the Act does contemplate that the Court will, in an appropriate case, grant leave. In that respect a case would be an appropriate case where the proceedings proposed against the bankrupt are proceedings to which other parties are involved and for the proper conduct of which it may be necessary for the bankrupt to become a party.

One must be careful in stating the matter that way, as counsel for the applicant did, not to come to the point where all proceedings in which a bankrupt is a respondent are automatically allowed because such proceedings could never continue without the bankrupt being a party in one sense.[80]

The effect of the sequestration order on the relationship between debtor and creditor

71 In the present case, the applicants contend that under modern bankruptcy law, once a sequestration order is made, the effect of the bankruptcy is that the remedies of a creditor against the person and the property of the bankrupt that were formerly available are taken away and there is substituted a right to prove against the estate which becomes vested in the trustee in bankruptcy.

72 In Clyne v Deputy Commission of Taxation,[81] Gibbs CJ, Murphy, Brennan and Dawson JJ explained the effect of the sequestration order on the relationship between debtor and creditor, as follows:

Before the court can make a sequestration order, it must be satisfied that "the debt or debts on which the petitioning creditor relies is or are still owing": s 52(1)(c). But since the debtor was already bankrupt when the petition came to be heard, the remedies against the person and property formerly available to the Deputy Commissioner had been taken away and there was substituted a right to prove against the estate which had become vested in Mr Andrew as trustee: see In re Thomas. Ex parte Commissioners of Woods and Forests (1888) 21 QBD 380, at p 383. At that time the Deputy Commissioner "was not a mere creditor. [He] was a creditor whose claim was in proof. [His] claim was no longer a mere right of action for a debt. [He] could no longer have maintained an action as for a debt. The debt had been, at any rate provisionally, merged in an equitable execution ...": see In re Higginson & Dean. Ex parte Attorney-General (1899) 1 QB 325, at 333; Ex parte Trustee of the Property of Cork (1932) 5 ABC 1, at 6-7; In re Cole; Ex parte Richards (1966) 9 FLR 190, at 191. Amounts which were owed by a debtor at the date of the bankruptcy may, notwithstanding his bankruptcy, still be described as debts, and the Act refers to them as such: see, e.g., ss 58(3), 84(1), 85(1), 86(1), 153(1), 154(1)(b). They are "debts" from which the bankrupt is not released until he is discharged from bankruptcy: s 153. However, in our opinion, they are no longer debts "still owing" within the meaning of s 52(1)(c). Although, as was rightly observed in the Federal Court, one dictionary meaning of "owing" is "that is yet to be paid", the word connotes a sense of obligation to make the payment. The effect of the bankruptcy however is that the debtor is no longer obliged to pay his creditors; indeed he is disabled from doing so. If he offered payment they could not safely accept it; their right is a right of proof against the estate.

This view has, in effect, been taken in two cases - In re White (1960) 20 ABC 11 and In re Cole; Ex parte Richards. In each of those cases after the estate of a debtor had been sequestrated a second sequestration order was made on a petition founded on a debt provable in the existing bankruptcy. It was held that the creditor had no legal right to the second sequestration order which should be rescinded. The proper course was, in our opinion, to annul rather than to rescind the second order (see In re Deriu (1970) 16 FLR 420, at 421, and In re Bond [1978] FCA 42; (1978) 22 ALR 287) but that does not affect the present case. The judgment of Clyne J in In re White in part rested on the view that the word "remedy" in s 60(2) of the Bankruptcy Act 1924 (Cth), as amended, (which in substance corresponded with s 58(3) of the present Act) includes a remedy by way of an action or suit - a construction which is open to doubt having regard to the express mention in the subsection of a legal proceeding. However the true ground of the decisions is that the earlier bankruptcy had converted the creditor's right to be paid by the debtor into a right of proof, and the debt was not still "owing" within the meaning of the statute.[82]

73 The conversion of the creditor's rights upon bankruptcy into a right to prove in the distribution of the bankrupt's estate was further explained by Lockhart J in Taylor v Secretary to the Department of Social Security.[83] His Honour said:

The intervention of bankruptcy converts a creditor's right of action against the debtor to a right to prove and share in the distribution of his estate then vested in the trustee. During bankruptcy a creditor is no longer able to maintain an action for a debt or otherwise enforce remedies against the person or property of the bankrupt which may affect his estate: Ex parte Trustee of the Property of Cork (1932) 5 ABC 1 at 6-7; Re Higginson (1899) 1 QB 325 at 333; Clyne v Deputy Commissioner of Taxation [1984] HCA 44; (1984) 154 CLR 589 at 594-595; Re Weiss Ex parte Official Trustee in Bankruptcy [1985] FCA 283; (1985) 7 FCR 121 at 123-4; Knight v Deputy Commissioner of Taxation (1987) 87 ATC 4970 per Burchett J at 4971-2. The right to sue is replaced by a right to share with other proved creditors equally and proportionately in the distribution of the estate of the bankrupt: see In Re Thomas Ex parte The Commissioners of Woods and Forests (1888) 21 QBD 380 at 383 and Re White 20 ABC 11.

Bankruptcy does not extinguish the debt. The creditor's right to sue may be revived if, for example, the bankruptcy is annulled. If a bankruptcy takes its usual course and the bankrupt is subsequently discharged from bankruptcy, he is released from all provable debts (s 153 of the Bankruptcy Act), though the assets constituting his divisible property remain in the hands of the trustee available for distribution among the proved creditors.[84]

74 More recently, in Cummings v Claremont Petroleum NL,[85] Brennan CJ, Gaudron and McHugh JJ confirmed that the effect of bankruptcy is to divest a bankrupt of his property, to vest that property in a trustee and to make it available for the payment of provable debts. Further, their Honours said '[t]he right to commence or take a fresh step in legal proceedings or to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt are, in general, denied to creditors when sequestration is ordered (s 58(3)).[86]

Does s 58(3) operate to impose a stay of execution of the judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth)?

75 The applicants contend that the effect of the bankruptcy here was that once the sequestration order was made on 7 November 2011, there was no debt remaining that was enforceable against the person or the property of the bankrupt, Mr J E Talacko. That is because, so the applicants say, the words of s 58(3)(a) of the Bankruptcy Act 1966 (Cth) prohibit the enforcement of any remedy against 'the person or the property of the bankrupt in respect of a provable debt'. They submit that the two money orders set out in the first certificate, being the orders of Kyrou J made on 11 December 2009 and the costs order of Wood AsJ made on 28 October 2009, are clearly 'provable debts' under s 82(1). Accordingly, they contend s 58(3)(a) operates so as to impose a stay of execution of the judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth).

76 Further, the applicants submit leave cannot be granted under s 58(3)(b) so as to override the operation of s 58(3)(a). In essence, they contend that the two sub-sections are separate and concern different situations, and should be interpreted as having a distinct (and not overlapping) operation. They submitted that when the provisions of s 58(3) are examined it will be seen that the section refers to three discrete situations:

refers to the situation where there is a provable debt which is capable of being enforced by a remedy.

In that situation, the judgment creditor is stated not to be competent to enforce any remedy against the person or the property of the bankrupt.

refers to two discrete situations - first, where it might have been possible to commence proceedings in respect of a provable debt but those proceedings have not been commenced; and secondly, where those proceedings have been commenced but have not been completed.

In either situation, the judgment creditor may be granted leave to commence, or to take any fresh step in, proceedings as the case may be, but the judgment creditor is not competent to enforce any remedy against the person or the property of the bankrupt (and no grant of leave can be extended to permit the judgment creditor to do so).

77 The second to fifth plaintiffs, on the other hand, contend that no order has been made in the 1998 proceeding staying the enforcement of the judgment of Kyrou J as such. Further, they say that even if s 58(3) requires them to obtain leave to enforce the judgment against Mr Talacko, their application to obtain a certificate under s 15(1) of the Foreign Judgments Act 1991 (Cth) is not, in itself, a proceeding to enforce the judgment against him but rather a proceeding in which they seek to have the judgment 'recognised' by the courts in the Czech Republic. They also rely on the orders made by North J on 10 December 2012, granting leave nunc pro tunc to pursue the petition proceedings in the Czech Republic, as giving them leave to continue the proceeding to have the judgment recognised.

78 In my view, essentially for the reasons advanced by the applicants, s 58(3) of the Bankruptcy Act 1966 (Cth) does operate so as to impose a stay of execution of the judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth).

79 The starting point is to ascertain the scope and operation of s 58(3) which, as the High Court observed in Foots v Southern Cross Mine Management Pty Ltd,[87] 'turns on the proper interpretation of s 82 and the concept of provable debt.'[88] Section 58(3) has two distinct parts. Although both limbs operate 'in respect of a provable debt', each has a separate and distinct sphere of operation. In Piccone v Suncorp Metway Insurance Ltd, [89] the Full Federal Court explained the role of each limb, stating:

Paragraph (a) has the effect of preventing enforcement of 'any remedy against the person or the property of the bankrupt in respect of a provable debt'. Paragraph (b) forbids the commencement of any legal proceedings in respect of a provable debt, or the taking of any fresh step in such proceedings, without the leave of the Court. In other words, whilst para (a) creates an absolute bar upon the relevant conduct, para (b) provides that either relevant step may be taken only if leave is granted.[90]

80 This view is consistent with that expressed in the earlier case of Fraser v Commissioner of Taxation.[91] There, Beaumont J (with whom Black CJ and Tamberlin J concurred) pointed to the important structural difference between the two limbs, namely 'that leave is now only contemplated in the circumstances described in s 58(3)(b), but not in those specified in s 58(3)(a)'.[92] His Honour noted that in s 58(3)(a) 'there is no exception provided (i.e. the grant of leave to proceed)' and said '[t]he bar imposed by s 58(3)(a) is absolute if the circumstances specified are shown to exist'.[93] His Honour went on to reiterate and endorse the observations of the High Court in Clyne v Deputy Commissioner of Taxation (No 3)[94] to the effect that 'a distinction should be drawn, for the purposes of s 58(3), between the "enforcement" of a remedy against the property of the bankrupt, on the one hand, and the commencement or the taking of a fresh step in a "legal proceeding" on the other.'[95] In that context, Beaumont J said, the words 'enforcement' of a 'remedy' should be interpreted as having their settled meaning, and the phrase 'to enforce' means 'to compel observance of' and would not likely extend to cover the institution of proceedings. Beaumont J concluded that having regard to the settled meaning of the phrase 'enforce a remedy':

the absolute bar imposed by s 58(3) should be construed so as to apply only to the enforcement of remedies, including extra-curial remedies, as distinct from the institution of legal proceedings and their maintenance up to the point of recovery of judgment. The institution and maintenance of such proceedings will, of course, be subject to the different constraints imposed by s 58(3)(b), unless leave be granted under that provision. [96]

81 In considering the construction and operation of s 58(3), it is also relevant to note that the expression 'the property of the bankrupt' is separately defined in s 5(1) so as to have an expanded meaning for the purposes of ss 58(3) and (4).[97] The effect of this expanded meaning is, as the Full Federal Court noted in Piccone v Suncorp Metway Insurance Ltd,[98] that s 58(3)(a) 'prohibits the enforcement of any remedy against the property of a bankrupt, whether or not such property is divisible against the bankrupt's creditors.'[99]

82 In my view, the foregoing cases make clear that once a sequestration order is made, the rights of a judgment creditor are converted into a right to prove in the distribution of the bankrupt's estate and share in the distribution of his estate then vested in the trustee. Further, once the judgment creditor's rights have been converted into a right to prove, the judgment creditor is no longer competent to enforce any remedy against the person or the property of the bankrupt whilst the bankruptcy is on foot. That is because during the bankruptcy, s 58(3)(a) operates to bar the enforcement of remedies by a creditor in respect of a provable debt, such that a creditor is no longer able to maintain an action for a debt or otherwise enforce remedies against the person or the property of the bankrupt which may affect his estate. And in the case of s 58(3)(a), unlike s 58(3)(b), no power is conferred on the court to give leave to allow remedies to be enforced against the person or the property of the bankrupt.

83 The applicants contend that the practical effect of s 58(3)(a) is to impose a stay of enforcement of the judgment and orders in question. They submit that for bankruptcy purposes, the source of the stay is not material, provided that it operates to effectively prohibit the creditor from enforcing the judgment at the relevant date. In support of their argument they refer to several cases in which the word 'stay' in various sections of the Bankruptcy Act 1966 (Cth) has been considered, and rely in particular on the decision of Spender J in Re Johnson; Ex parte Johnson v Tonkin.[100]

84 In Re Johnson, the court was concerned with the operation of s 41(3) of the Act and in particular, whether a judgment that was incapable of execution without leave is 'stayed' in the relevant sense. Spender J held that it is a necessary requirement of the Bankruptcy Act 1966 (Cth) that a judgment or order founding a bankruptcy notice be one which is not stayed, within the wide meaning given to that phrase, both at the time of issue of the bankruptcy notice and at the time of its service. Relevantly for present purposes, his Honour found that a judgment or order 'the execution of which has not been stayed' within the meaning of s 40(1)(g) of the Act is not restricted only to cases where there is an express stay by order of the court but is wide enough to include a 'stale' judgment or order, in respect of the execution of which leave must be obtained.

85 In reaching his decision, Spender J referred to Re Seers[101] where Clyne J had expressed the view that the words in s 52(j) of the Act - 'and execution thereon not having been stayed' - are not 'restricted only to cases where there has been an express stay by order of the court.' In Re Seers, Clyne J went on to observe, following the dictum of Bowen LJ in Re Ide; Ex parte Ide,[102] that '[i]t is clearly established that in order to entitle a creditor to issue a bankruptcy notice he must be in a position to issue execution on his judgment at the time when he issues the bankruptcy notice.'[103] Spender J noted that these observations of Clyne J were cited with approval in Penning v Steel Tube Supplies Pty Ltd.[104] He also referred to Re Moss; Ex parte Tour Finance Ltd[105] where Gibbs J (as he then was) considered that the words 'the execution of which has not been stayed' in the prescribed form and in s 40(1)(g) speak 'as at the time when the notice is served and refer to a stay of execution which has continued in force up to the time of service of the notice' and similarly that s 41(3)(b) refers to 'a stay in force at the time of the application.' Accordingly, Gibbs J found that '[t]he effect of these provisions is that if at the time of the application for its issue execution of the judgment or order to which it relates has been stayed, and the stay is still in force, so that at that time the creditor is not entitled immediately to issue execution of the judgment, the notice will be bad ...'.[106]

86 Against that background, in Re Johnson Spender J held that in order to serve a valid notice, the creditor must be in a position to issue execution on the judgment, in the sense of being in a position to receive payment. His Honour said:

As s 41(3) makes plain, it is clearly necessary that in order to entitle a creditor to issue a bankruptcy notice he must be in the position to issue execution on his judgment at the time when he issues the bankruptcy notice: Re Seers (supra) at p 13; Re Ide; Ex Parte Ide (1886) 17 QBD 755 at 759.

In Re Debtor; Ex parte Debtor [1908] 1 KB 344. Fletcher Moulton LJ said (at 351):

You have to show that you are in a position to receive payment at the date when you serve the bankruptcy notice.

Gibbs J in Re Moss (supra) said (at 104) that this statement 'is not in conflict with the statement of Clyne J because the creditor has to be entitled to enforce his judgment both at the time of the issue of the notice and at the time of its service'. Re Moss was a case where the claimed 'stay' had ceased prior to the issue of the bankruptcy notice, so that the question was not as here, which is whether there is the requirement not only at the date of issue but at the date of service. Nonetheless the observations of Gibbs J directly cover the present facts.[107]

87 Relying upon that line of cases, the applicants contend that the expression 'stay' in s 15(2) of the Foreign Judgments Act 1991 (Cth) encompasses any form of legal prohibition of enforcement of the judgment and orders in question. Accordingly, they contend that in the present case, because s 58(3) of the Bankruptcy Act 1966 (Cth) operates to prevent the second to fifth plaintiffs enforcing the judgment and orders, there was an effective stay for the purposes of s 15(2).

88 There is no dispute that the two money orders set out in the first certificate are 'provable debts' under s 82(1) of the Bankruptcy Act 1966 (Cth). Accordingly, once the sequestration order was made, the second to fifth plaintiffs' right to be paid the judgment debt was converted into a right of proof against the bankrupt estate which had become vested in the trustee, and they were no longer competent to enforce any remedy against 'the property of the bankrupt'. During the bankruptcy, the position is as Beaumont J explained by in Fraser v Commissioner of Taxation,[108] namely:

. . . there is no scope here for any role to be played by individual creditors acting on their own initiative; and if litigation is to be instituted with a view to the recovery of assets, it is the trustee's function, and responsibility to be the dominus litis and thus entirely in charge of the litigation to the exclusion of individual creditors. In other words, the relevant scheme of the legislation, specifically that of s 58(3), is that individual creditors have no right to decide to pursue, or not to pursue, the assets of the bankrupt with a view to the satisfaction of individual debts. This is a matter, in terms of authority, as well as responsibility, for the trustee exclusively: see, e.g., Morris v Murjani [1996] 1 WLR 848 at 852-853. Section 58(3) should be interpreted in a way that gives practical effect to this legislative purpose.[109]

89 Viewed in this way, the bankruptcy operated as an effective stay of enforcement of the judgment and orders obtained by the second to fifth plaintiffs. Accordingly, in my view, s 58(3) does operate so as to impose a stay of execution of the judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth).[110] It follows that in circumstances where a judgment debtor is an undischarged bankrupt, it is unlikely that an application made by a person who is a 'judgment creditor' of the bankrupt could qualify as an application 'duly made' under s 15(1) of the Foreign Judgments Act 1991 (Cth).

What effect, if any, does the leave granted by North J nunc pro tunc on 10 December 2012 have vis-à-vis the first (and second) certificates?

90 Given the conclusions reached above in relation to the construction and operation of s 58(3), it is not strictly necessary to consider this issue, but I shall do so for completeness lest any different view be taken of its proper construction.

91 As noted earlier, s 58(3)(b) leaves open the prospect that in appropriate cases the court will grant leave to permit a creditor to pursue proceedings for the recovery of a debt. The circumstances in which a court will grant leave have been the subject of consideration in many cases. The leading case is Allanson v Midland Credit Limited.[111] There the Full Court (Bowen CJ, Riley and Deane JJ) allowed the proceeding, which had been commenced before the sequestration order was made, to be continued. At that time, there was an extant appeal to the High Court by the debtor, appealing the making of the sequestration order. In those circumstances, the Full Court, being satisfied that it had jurisdiction to grant leave to proceed, said that:

Where a court is given power to grant leave to perform a particular act or pursue a particular course of action and the question whether the need for such leave has arisen involves difficult and complicated questions of law or fact, it is permissible in an appropriate case, to proceed on the basis that such leave is necessary rather than involve the parties in the futile exercise of determining, possibly after a series of appeals, whether the need for such leave has arisen. In all the circumstances including the urgency of the matter, we consider that that is the appropriate course to adopt in this case and that we should, to the extent necessary, grant leave to Midland Credit to continue and take fresh steps in the proceedings in the Supreme Court of New South Wales. This approach would, it seems to us, be consistent with that adopted by the High Court in Talga Ltd v MBC International Ltd.[112]

92 In the present case, the orders North J made on 10 December 2012 granting leave dealt specifically with each of the proceedings then on foot between the parties. In respect of the 1998 proceeding, the only leave that was granted was that set out in paragraphs 1.1 (to commence an application for the assessment of their costs in the 1998 proceeding), 1.2 and 1.3 (to commence an application for taxation of the plaintiffs' costs in Court of Appeal proceedings 3849 of 2008 and S APCI 2010 0002 respectively), and 1.4 (to commence an application for taxation of the plaintiffs' costs in High Court of Australia proceeding No M26 of 2011). Importantly, however, in each case the relevant order granting leave was made subject to the express proviso that 'no steps be taken to enforce any judgment against [Mr J E Talacko] without the prior leave of the Federal Court in its bankruptcy jurisdiction.' Furthermore, no leave was sought or given nunc pro tunc for the second to fifth plaintiffs to make application in the 1998 proceeding for the issue of a certificate under the Foreign Judgments Act 1991 (Cth).

93 In the case of the execution petition proceedings in the Czech Republic, being Nos 49 EXE 2107/2011-73 and 48 EXE 522/2012-75, the leave granted was 'to continue to take further steps, including defending or pursuing any appeal, up to judgment against [Mr J E Talacko]'. Once again, however, the leave was made subject to the express proviso that 'no steps be taken to enforce any judgment against [Mr J E Talacko] without the prior leave of the Federal Court in its bankruptcy jurisdiction.'

94 The second to fifth plaintiffs contend, by reference to the orders North J made concerning the petition proceedings in the Czech Republic, that the application for the issue of the first certificate, and for the second certificate respectively was 'duly made by a judgment creditor' for the reason that 'leave had indeed been given by the Court pursuant to section 58(3) to take a fresh step in a proceeding'.[113]

95 It is clear that under the Miscellaneous Civil Proceedings Rules, the application for a certificate under s 15 of the Foreign Judgments Act 1991 (Cth) must be made 'in the proceeding in which the judgment of the Court was obtained': r 11.10(2). When the second to fifth plaintiffs made application to the Prothonotary in mid-2012 for a certificate, Mr J E Talacko was already a bankrupt. At that time, no leave had been granted under s 58(3) to take any further steps in the 1998 proceeding to seek the issue of a certificate, nor as I have noted was any leave later given nunc pro tunc to remedy that omission. Further, when the second certificate was sought, it remained the case that no leave had been given for the making of any further application under s 15.

96 The second to fifth plaintiffs refer to the evidence given by Mr Hlavicka in his November 2012 affidavit filed in the Federal Court proceedings about the nature of the petition proceedings brought by them in the Czech Republic.[114] They submit that his evidence demonstrates that 'an essential step' in the enforcement petition proceedings was to have the Czech courts 'recognise' the decisions made by this Court in the 1998 proceeding and 'to furnish the Czech courts with a copy of these decisions and a description of their status under Australian law'.[115] Accordingly, they contend their application for a certificate under s 15 was 'an essential step' in the Recognition Proceeding (i.e., their execution petition proceeding as referred to by Mr Hlavicka) for which the Federal Court gave leave, nunc pro tunc, in the orders made on 10 December 2012.

97 The transcript of the hearing before North J on 10 December 2012 records that the orders were made by consent, after counsel for the plaintiffs, Mr Howells, had 'reached an understanding' with Mr Bornstein, counsel for the trustee in bankruptcy.[116] Mr Howells informed the Court that Mr Bornstein had requested the inclusion of the proviso that appears in their proposed orders 2 and 3 (provided that no step be taken to enforce any judgment etc.) at the end of the orders in paragraph 1, and said they were 'content to add those words in.'[117]

98 Mr Howells then took his Honour through each of the proposed orders. In dealing with proposed order 1, concerning the 1998 proceeding, he explained that they were seeking to have the orders for costs in the proceedings and appeals which gave rise to the judgment of Kyrou J expressed in money terms. He said this was because 'not only is it the case that the rules of private international law would require the order to be expressed in money terms, but that under Czech law there are scales that are strictly regulated for the award of costs and they tend to operate on the basis of identifying by descriptor the kind of matter that is involved and then apportioning a non-negotiable amount for the despatch of such a matter.'[118] He added that although counsel for the trustee had indicated 'that he envisages that the trustee in bankruptcy would take the view that because these costs orders would be able to be pursued as provable debts' those orders were not necessary.[119] Nevertheless, he said 'given the prior conduct of the debtor in this matter'[120] and the location of the majority of the properties in the Czech Republic, and Slovenia and Germany, then -

if there were some difficulty at some state [sic] experienced by the trustee in bankruptcy in pursuit of all aspects of the estate in the Czech Republic, we would be assisted by having costs expressed in money terms, that is in the form of a money order, so that together with the trustee and in cooperation with the trustee, we would be able to seek some relief in a European court. [121]

99 The following exchange then ensued with North J:

HIS HONOUR: And presently you are prevented from doing that because the respondent has been made bankrupt.

MR HOWELLS: Yes, your Honour.

HIS HONOUR: And as a result all proceedings against him have been stayed.

MR HOWELLS: And there is only one - there is a limitation upon those proceedings for which we can be granted leave and that's confined to 53 - through 58(3)

HIS HONOUR: What does 58(3) say?

...

MR HOWELLS: Two parts, your Honour, the matters about which we can't seek leave and that is concerning the property of the debtor and those that we can proceed or seek leave to proceed in, in relation to matters that are connected with a provable debt.

HIS HONOUR: So this is taking a fresh step in a proceeding.

MR HOWELLS: Yes, your Honour.

HIS HONOUR: In relation to a provable debt. So the judgments, the money judgments obtained from the Supreme Court are provable debts.

MR HOWELLS: They are. We contend for that and our learned friend certainly doesn't dispute that.

HIS HONOUR: And so this is within 58(3)(b) a fresh step in the proceedings and why would I grant leave?

MR HOWELLS: Well, your Honour - - -

HIS HONOUR: I mean this is a section that is there to protect creditors, correct?

MR HOWELLS: Yes.[122]

100 As is clear from the foregoing, in the context of dealing with the orders sought in relation to the 1998 proceeding, no reference was made to the first certificate having been issued by the Prothonotary at the request of the second to fifth plaintiffs and no grant of leave was sought in respect of it. Mr Howells then dealt with the proposed order 2 concerning the 2009 proceeding, which is not presently relevant. He then turned to paragraph 3 of the proposed orders and explained the petition proceedings to his Honour, as follows:

MR HOWELLS: Your Honour, there are two different sets of petitions proceedings that have been lodged in the district court in Prague. The first - and in each case, a separate petition was filed on behalf of the first applicant and a separate one for the second to fifth. The first set of petition proceedings, which are the ones that are the subject of proposed order number 3, have been described by the Czech attorneys as execution proceedings but what they're aimed at is seeking to have recognised and then, according to law, enforced the judgment of Kyrou J in the Supreme Court of Victoria. And that required us to provide a comprehensive certification of the finality and enforceability of that judgment in Australia and also a reciprocity statement from the attorney.

And we did that after some considerable effort, I might hasten to add, and the court in the Czech Republic accepted that we had satisfied those requirements and, otherwise, that the application for recognition and enforcement of Kyrou J's judgment satisfied the requirements and prohibitions of the rules of private international law, so far as they apply under Czech law. The point about it is that even if we were to get judgment - sorry, I withdraw that, your Honour. Even having obtained a favourable judgment in these petitioned proceedings, that doesn't give us execution, as it were, because the defendant had succeeded in divesting properties to his sons. Under Czech law there are provisions that operate in ways not dissimilar to those under section 121 of the Bankruptcy Act and 172 of the Property Law Act where there are transfers that are made that are said to offend principles of fairness.

But there are also provisions in the Czech civil code that deal with the question of unjust enrichment when it might be said to have occurred. The remedies there that are being sought are being sought in separate proceedings which have been described by the Czech attorneys as petitioned proceedings aimed to have been declared void the donation agreements between the debtor, who is the father, to his sons. Those proceedings have not yet been brought to a conclusion. Indeed, they are midstream now. I hasten to add that because the recognition has been given by the District Court and approved on appeal by the Municipal Court sittings, the Court of Appeal from the District Court, the onus under the procedural code is thrown to the sons to establish that their receipt of those properties by donation is not tainted by a purpose of avoiding a creditor.

And it would be necessary for those proceedings to be concluded and for us to obtain judgment on those proceedings and an alteration of the what is referred to as the cadastral register before we would have any prospect of execution. Now, two things arise there. The first thing is that, as my learned friend was quick to point out, "Well, you can't proceed to execution because the bankruptcy applies. Do you seek leave" he asked, "to be able to proceed with the petition proceedings about the donation agreements?". And we said, "Well, those proceedings", which are not named in order 3 and which we don't seek leave for, "are proceedings not in which the debtor is not a party at all. They are proceedings against the sons".

HIS HONOUR: Against the sons, yes.

MR HOWELLS: And so if we're successful there then the orthodox reasoning would, no doubt, be, "Well, if the entries in the cadastral register are altered, those properties would immediately vest in the debtor again and perforce the Bankruptcy Act 1966 would then vest in to the trustee in bankruptcy". We have - - -

HIS HONOUR: Well, I understand, then, why you're not seeking leave in relation to that. And then 4 simply takes account of the death of the first applicant. [123]

101 In the current proceedings, the second to fifth plaintiffs rely on paragraph 3 of the December 2012 orders, contending that it constitutes the relevant grant of leave for the purposes of s 58(3) and permits them to pursue the petition proceedings in the Czech Republic. They submit that because the application for a certificate under s 15 is 'an essential step' in the Recognition Proceeding (i.e., their execution petition proceeding as referred to by Mr Hlavicka) for which the Federal Court gave leave, nunc pro tunc, in the orders made on 10 December 2012, this Court should be satisfied that leave was effectively given to them to pursue the petition proceedings in the manner outlined.

102 The submission made was to the effect that there was no purpose underlying the grant of leave with respect to the petition proceedings other than to recognise or enforce the decision that was made in the 1998 proceeding and if the submissions advanced on behalf of Mr Findlay and Mrs Talacko were to be accepted, such that order 3 did not permit them to do that, then it would serve no point and be meaningless.[124] Further, Dr Sharpe contended, 'plainly by giving leave to pursue these proceedings in Prague must have entailed necessarily leave to take whatever steps necessary to pursue those proceedings'[125] and that in giving leave to pursue the proceedings in Prague, his Honour 'must have implicitly linked leave for any step in the proceeding to pursue those proceedings and that's plainly what the certificate's for, because without that there can be no proceeding.'[126] In this regard, reference was made to the passage of the transcript of the proceedings before North J on 10 December 2012 (set out above) where, in the context of proposed order 3, Mr Howells adverted to the certificate and explained that they were required 'to provide a comprehensive certification of the finality and enforceability' of Kyrou J's judgment.[127]

103 Further, Dr Sharpe contended that the taking of the additional step in the 1998 proceeding, of having the second certificate issued by the Prothonotary in February 2015, was also 'implicit in the orders Justice North made' in order 3 in order to pursue the proceedings in Prague.[128]

104 In their written outline of submissions, the second to fifth plaintiffs maintained that the outcome contended for by the applicants was one that would be inefficient and productive of delay. They submitted that:

A literal reading of the orders of the Federal Court to exclude the making of an application for a certificate under s 15(1) of the [Foreign Judgments] Act as being a step taken in these proceedings (no. 7393 of 1998), and not the Recognition Proceeding, would result in the Plaintiffs being placed in the position of having [to] return again to the Federal Court to obtain leave specifically for this small step. This would increase the costs and delay in this matter and would be contrary to the overarching obligation owed by the Court under sections 7 and 8 of the Civil Procedure Act 2010 (Vic) '... to facilitate the just, efficient, timely and cost-effective resolution of the real issues in the dispute.' Further, section 29 of the Supreme Court Act 1986 (Vic) requires the Court to avoid a multiplicity of proceedings.[129]

105 The second to fifth plaintiffs' submission proceeds on the assumption that leave could be given under s 58(3)(b) to permit a creditor to make application for a certificate under s 15(1) in respect of judgments and orders for money sums that are provable debts in the bankruptcy. Even if, contrary to my view, s 58(3)(a) does not operate to bar the enforcement of remedies during the bankruptcy, I am not satisfied that leave was implicitly given in the present case.

106 One obvious difficulty with the submission that leave was implicitly given, is that order 3 is made expressly subject to the proviso that no step be taken to enforce any judgment. Accordingly, it is difficult to see how the second to fifth plaintiffs could satisfy the threshold requirement in s 15(1), namely that they be judgment creditors who are capable of 'enforcing' in a foreign country a judgment that has been given in an Australian court. Secondly, while order 3 appears to permit the continuation of the petition proceedings to the point of judgment, it must be read in light of the limited grant of leave in order 1 concerning the 1998 proceeding. That is, each grant of leave in orders 1.1, 1.2, 1.3 and 1.4 deals with a discrete step and is made subject to the express proviso that 'no step be taken to enforce any judgment against the Respondent without the prior leave of the Federal Court of Australia in its bankruptcy jurisdiction.' If order 3 were to be construed in the way contended for by the second to fifth plaintiffs, in isolation from the other orders made, his Honour would be regarded as having implicitly given leave to them to enforce the judgment against the bankrupt, notwithstanding that in the case of each of the orders made concerning the 1998 proceeding he has expressly imposed a proviso that there be no enforcement of any judgment without leave.

107 It follows, in my view, that in circumstances where the orders North J made do not permit enforcement of any judgment, it unlikely that his Honour implicitly granted leave to the second to fifth plaintiffs to permit them to seek a certificate directed to facilitating the enforcement of the relevant Victorian judgments and orders in the foreign country. Further, I do not regard the orders made nunc pro tunc by his Honour as having operated to validate retrospectively the issue of the first certificate by the Prothonotary on 4 July 2012.

The second to fifth plaintiffs contend that the first certificate and/or the second certificate were nevertheless valid and effective because their actions were directed to 'recognising' rather than 'enforcing' the judgments

108 The second to fifth plaintiffs also argue that their actions in seeking, obtaining and deploying the first certificate were not directed to 'enforcement' of the judgments but rather to 'recognising' them in the Czech Republic. First, they say that the application to obtain a certificate under s 15(1) is not, in itself, a proceeding to enforce the judgment against Mr J E Talacko. Rather, it is said the certificate forms the basis for the 'donation proceedings' brought against Mr Talacko's sons, seeking to set aside the donation agreement whereby he transferred certain properties to them for no consideration. Dr Sharpe said that the transcript of the proceedings before North J makes clear that what was sought to be done by the orders made on 10 December 2012 was to have the judgment of Kyrou J recognised in Prague. She said that was done 'not with the intention to enforce those judgments [i.e., the judgments in the 1998 proceedings] as against the defendant, but because it is a necessary plank in order to have the donation agreements between the defendant and his two sons set aside, thereby allowing that property to return to the estate of the bankrupt.'[130] She said it also forms the basis for the 'registration proceeding' (elsewhere called the 'enforcement petition proceedings') whereby they seek to have the judgments made in the 1998 proceeding recognised by the courts in the Czech Republic.[131]

109 The second to fifth plaintiffs submit that the Foreign Judgments Act 1991 (Cth) provides, under s 15(1), 'for the issue of certificates for the recognition of Australian judgments in foreign courts'[132] and that '[a]n essential step in the Recognition Proceeding to have the Czech courts recognize the decisions made by this Court in this proceeding (no. 7393 of 1998) is to furnish the Czech courts with a copy of these decisions and a description of their status under Australian law.'[133]

110 The applicants' responded by pointing out that the expression 'recognition', as opposed to 'enforcement', is not mentioned in s 15 of the Act.[134] In s 3 of the Act, the expressions 'enforcement' and 'judgment creditor' are stated to have the following meanings, unless the contrary intention appears:

enforcement means:

(a) where there is not an amount of money payable under the judgment, enforcement by:

(i) attachment; or

(ii) committal; or

(iii) fine; or

(iv) sequestration; or

(b) where there is an amount of money payable under the judgment, enforcement by execution.

judgment creditor, in relation to a judgment, means the person in whose favour the judgment was given, (whether or not a sum of money is payable under the judgment) and includes a person in whom the rights under the judgment have become vested by succession, assignment or otherwise.

111 Generally speaking, when used in the context of practice and procedure, 'execution' refers to '[t]he process of enforcing a judgment against a debtor, for example by issuing a writ of execution directing a sheriff or other court officer to seize the debtor's goods, sell them and pay the proceeds to the judgment creditor.'[135] This reflects what Beaumont J described in Fraser v Commissioner of Taxation,[136] as the settled meaning of the phrase to 'enforce a remedy'. [137]

112 In oral submissions, counsel for the second to fifth plaintiffs submitted that consistent with the 'modern system of bankruptcy' there was no attempt by the second to fifth defendants to get the defendant's property. Rather, Dr Sharpe said, they are seeking to have the judgment 'recognised' as a necessary basis for bringing the petition proceedings against Mr Talacko's sons, who now hold the property that Mr Talacko transferred to them by way of gift, and in that sense it is the judgment which forms the basis for the proceedings brought under Czech law against the sons. Dr Sharpe submitted that if those donation proceedings against the sons are successful, the property will come back to the bankrupt and will vest in the trustee in bankruptcy, whereupon it will be a matter for the trustee to deal with and distribute the property. Further, it was said this outcome would promote the interests of the creditors of the bankrupt estate because the trustee in bankruptcy would now be time-barred from issuing any similar proceeding.

113 In my view, the power conferred on the Prothonotary under s 15(1) of the Foreign Judgments Act 1991 (Cth) is predicated upon, and only enlivened when 'an application is duly made by a judgment creditor who wishes to enforce in a country a judgment that has been given in an Australian court' (emphasis added). If, as the second to fifth plaintiffs contend, they do not seek to execute upon or enforce the judgments, but merely to 'recognise' them, the act of recognition being said by them to be something other than 'enforcement' or 'execution' of the judgments, then the qualifying words in s 15(1) will not be satisfied, and their application could not be regarded as one that is 'duly made'.

114 In my view, for the reasons set out above, s 58(3) of the Bankruptcy Act 1966 (Cth) operates so as to impose a stay of execution of the judgment debt for the purposes of s 15(2) of the Foreign Judgments Act 1991 (Cth). It follows that I am not satisfied that the second to fifth plaintiffs were competent to make application for the issue of a certificate under s 15(1) of the Act. Accordingly, there being no 'duly made' application before the Prothonotary, the Prothonotary's power to issue a certificate with respect to that judgment under s 15(1) of the Foreign Judgments Act 1991 (Cth) was not enlivened, and the first certificate was issued in error. The position was no different when the second to fifth plaintiffs sought the second certificate to amend and replace the first certificate. It follows that the second certificate was also issued in error.

Review of the acts of the Prothonotary as an official of the Court - is the Court's inherent supervisory jurisdiction overridden by either the ADJR Act or Order 56 of the Rules?

115 The Prothonotary is an officer of the Court appointed under s 106(a) of the Supreme Court Act 1986 (Vic). His functions are conveniently described in paragraph 4 of each certificate as being to:

(a) Receive all business of the Court and to dispatch such business as shall be ordered or required,

(b) Authenticate and enter in the Register all judgments and orders of the Court and certify their validity as required, and

(c) Issue and validate the process of the Court including process for the enforcement of the rulings, judgments and orders of the Court.[138]

116 Each of Mr Findlay and Mrs Talacko wishes to claim relief from the Supreme Court in its inherent jurisdiction, exercising oversight over the acts of the Prothonotary as an official of the Court. They submit that the Court has an inherent supervisory jurisdiction over the acts of the Prothonotary which is not overridden by either the ADJR Act or Order 56 of the General Civil Procedure Rules.

117 The second to fifth plaintiffs on the other hand raise an objection as to the competency of the summonses brought by Mr Findlay and Mrs Talacko. In essence, they contend that the summonses are not competent because Mr Findlay and Mrs Talacko have not made application for judicial review of the decision made by the Prothonotary under either the ADJR Act or Order 56. It was said that what the summonses are essentially attempting to do is subvert what would be the normal processes for judicial review of an administration decision.

118 The Supreme Court of Victoria is the superior court in this State. Section 85(1) of the Constitution Act 1975 (Vic) provides that subject to the Act, the Supreme Court 'shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior court of Victoria with unlimited jurisdiction.' While the jurisdiction is unlimited, the Parliament may confer additional jurisdiction or powers on the Court (s 85(4)) or enact legislation that limits or excludes the jurisdiction of the Court in respect of a particular matter provided that any applicable requirement of the Constitution Act 1975 (Vic) is adhered to. As Brooking J observed in City of Collingwood v Victoria (No 2):[139]

The [Constitution] Act recognises that the judicial power of the Supreme Court is not sacrosanct: it may be augmented or diminished by Parliament, subject to the observance of any applicable requirement of the Act. The whole of Pt III may be repealed if the requirements of ss 18 and 85 are observed. That the jurisdiction and powers of the Supreme Court are not immutable is shown by s 85(4), whereby Parliament may confer additional jurisdiction or powers on the Supreme Court. Section 85(6) shows that Parliament may trench upon the jurisdiction of the Supreme Court by excluding or restricting its judicial review of a decision of another court, tribunal, body or person. Section 85(8) makes it clear that Parliament may confer on a court, tribunal, body or person jurisdiction which would otherwise be exercisable by the Supreme Court. Section 85(9) shows that Parliament may limit the jurisdiction of the Supreme Court by conferring exclusive jurisdiction on another court. [140]

119 The applicants contend that it is implicit in the judgment of Gillard J in Kimseal Pty Ltd v Kimberley Plastics Pty Ltd[141] that the Court has inherent jurisdiction to supervise acts of the Prothonotary other than those, such as the assessment of damages in default of the delivery of defence, for which the Rules required an application to be made by way of motion for a new trial. In this regard, they also point to the fact that the current General Civil Procedure Rules do not prescribe any specific procedure for challenging an act of the Prothonotary. In making their submissions, the applicants also made reference to reported cases where inherent power has been invoked by courts of unlimited jurisdiction to support orders recalling a judgment which is void or irregular or orders which are necessary for the court to act effectively within its own jurisdiction.[142] In Grassby v The Queen, Dawson J said 'inherent jurisdiction is an elusive concept' but added that 'it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power.'[143]

120 As a general matter, this Court, being a superior court of record, has inherent power to make orders recalling a certificate issued by one of its officers which is found to be invalid, void or irregular. In the recent decision in P T Bayan Resources TBK v BCBC Singapore Pte Ltd,[144] the High Court confirmed the scope of the inherent power of State Supreme Courts. The appeal concerned the power of the Supreme Court of Western Australia to make a freezing order in relation to a prospective judgment of a foreign court which would be registrable under the Foreign Judgments Act 1991 (Cth). In discussing the State court's inherent power, the plurality said:

It is well established by decisions of this Court that the inherent power of the Supreme Court of a State includes the power to make such orders as that Court may determine to be appropriate "to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction".[145]

In a concurring judgment, Keane and Nettle JJ expressed their view in more emphatic terms. Their Honours observed that the Foreign Judgments Act 1991 (Cth) 'does not address itself to establishing the limits of the inherent power of a superior court of record to ensure that its own processes are not frustrated'[146] Accordingly, in holding that no narrow view should be taken of the inherent power of a superior court to grant a freezing order, their Honours said they did not accept that the Foreign Judgments Act 1991 (Cth) 'is in any way concerned to limit the inherent power of superior courts in Australia to ensure that their processes are not abused or rendered useless.'[147]

121 The powers that the Prothonotary exercises when issuing a certificate to accompany a certified copy of a judgment are those invoked upon the making of an application under s 15 of the Foreign Judgments Act 1991 (Cth) and as conferred under rr 11.10 and 11.11 of the Miscellaneous Civil Proceedings Rules. Under those Rules, the application is required to be made in the proceeding in which the judgment of the Court was obtained (r 11.10(2)), and is effected by filing a draft of the certificate together with an affidavit deposing to such information as will enable the certificate to be granted (r 11.10(3)). The content of the certificate to be provided by the Prothonotary is specified by r 11.11(c), as follows:

If an application for a certified copy of a judgment is granted, the copy of the judgment issued shall -

. . .

(c) be accompanied by a certificate by the Prothonotary stating -

(i) that the proceeding is at an end except for enforcement of the judgment;

(ii) the claim or claims in respect of which the judgment was given;

(iii) the grounds upon which the judgment was based;

(iv) the rate at which the judgment carries interest;

(v) such other matters as the Prothonotary considers necessary or desirable.

122 Under the Rules of Court no procedure is prescribed for challenging such an act of the Prothonotary or the content of the certificate issued. Subject to the operation of the ADJR Act (discussed below), it is a matter that ordinarily would fall to be supervised under the inherent jurisdiction of the Court.

Order 56 - does mandamus or certiorari lie against the Prothonotary?

123 Rule 56.01(1) provides that, subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certain writs, which include certiorari and mandamus, shall be exercised only by way of judgment or order and in a proceeding commenced in accordance with the General Civil Procedure Rules. The new procedure established under Order 56 for the jurisdiction that formerly the Supreme Court exercised over inferior courts and tribunals by means of the prerogative writs does not affect the principles by which the court determines whether the relief or remedy should be granted.[148] That is, under Order 56 'the common law jurisdiction of the court to grant relief of the kind formerly granted by prerogative writ is preserved.'[149]

124 Historically, mandamus and certiorari were not granted by a superior court against officers of that court. Those writs lay only against what were referred to as 'inferior' courts and tribunals.[150] In the present case, the applicants acknowledge that the High Court of Australia has exercised jurisdiction to grant mandamus or prohibition against some bodies said to be constituted as superior courts, but say that there the power to do so depended upon the reference to 'officer of the Commonwealth' in s 75(v) of the Commonwealth Constitution.[151] They submit that this use of the writs is exceptional and does not affect the general principle.

125 In the exercise of its supervisory jurisdiction of judicial review of inferior courts or tribunals, the concern of the Supreme Court is whether what was done by the court or tribunal below was within jurisdiction and in accordance with law, not with the merits of the decision. In Craig v South Australia,[152] the High Court explained the nature of certiorari as being:

. . . a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'.[153]

126 Given that historically the writs of mandamus and certiorari lay only against inferior courts and tribunals, in my view it is unlikely that the order to review procedure under Order 56 would be available to be invoked against the Prothonotary of this Court when exercising the powers conferred under s 15 of the Foreign Judgments Act 1991 (Cth) and rr 11.10 and 11.11 of the Miscellaneous Civil Procedure Rules.

127 It remains to consider whether the ADJR Act operates to exclude or diminish the power of the Court to supervise or 'review' the 'decision' made by the Prothonotary to issue the first certificate or the second certificate.

128 The ADJR Act provides for judicial review of certain administrative decisions. Generally speaking, under s 5 of the Act a person who is aggrieved by a decision to which the Act applies may make application to the Federal Court or the Federal Circuit Court for an order for review in respect of that decision.

129 For present purposes, the relevant provisions of the ADJR Act are found in s 9, which limits the jurisdiction to review of State courts. Section 9(1)(a) relevantly provides that '[n]otwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review a decision to which this section applies'. Section 9(2) provides that the expression 'decision to which this section applies' means '(a) a decision that is a decision to which this Act applies; or (b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.' Sub-paragraph (b) is not presently relevant.

130 Section 3(1) defines the expression 'decision to which this Act applies' in terms which include 'a decision of an administrative character made ... under an enactment referred to in paragraph (a) . . . of the definition of enactment'. Paragraph (a) of the definition of 'enactment' refers to 'an Act' (other than certain specified Acts which are irrelevant for present purposes). Section 9(2) provides that in s 9, 'review' means 'review by way of (a) the grant of an injunction, (b) the grant of a prerogative or statutory writ. . . . or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ, or (c) the making of a declaratory order'.

131 The expression 'decision of an administrative character' is not defined. In Griffith University v Tang[154] the plurality in the High Court said that there were dangers in seeing the elements of the phrase 'decision of an administrative character made under an enactment' as discrete elements and of looking at that phrase otherwise than as a whole. [155] In this regard, their Honours referred to Australian Broadcasting Tribunal v Bond[156] where the High Court 'decided that, to qualify as a reviewable decision, it will generally be necessary to point to a decision which is final or operative and determinative, at least in the practical sense, of an issue of fact falling for consideration'.[157]

132 Later in their reasons, under the heading 'the preferred construction', their Honours in the plurality summarised their view as follows:

The determination of whether a decision is "made . . . under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made . . . under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.[158]

133 The Foreign Judgments Act 1991 (Cth) is an enactment for the purposes of the ADJR Act. The review of a decision under Order 56 of the General Civil Procedure Rules falls within paragraph (b) of the definition of 'review' in s 9(2) of the ADJR Act, and thus the exercise of jurisdiction by the Supreme Court under that Order is precluded by s 9(1)(a) in respect of decisions to which s 9 of the ADJR Act applies. Likewise, the making of a declaratory order falls within paragraph (c) of the definition of 'review' in s 9(2) of the ADJR Act.

134 The applicants contend that the ADJR Act does not apply to the issuing of a certificate under s 15 of the Foreign Judgments Act 1991 (Cth). First, they say, the relevant concept of decision as used in the ADJR Act requires that there be a substantive determination.[159] They contend that under the Foreign Judgments Act 1991 (Cth), the function of the Prothonotary does not involve the making of a decision in the relevant sense because s 15 requires the certification of existing facts in relation to a judgment and the Prothonotary 'must issue' the certificate where an application is duly made by a judgment creditor.

135 In response, the second to fifth plaintiffs placed reliance on the extended definition of 'the making of a decision' in s 3(2) of the ADJR Act. Section 3(2) provides that a reference to 'the making of a decision' includes a reference to seven classes of particular subject matter, including '(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission'. The applicants point out, however, that it has been held that s 3(2) does not operate to 'bring each class of conduct within the scope of a "decision" unless engaging in the nominated subject matter also involves an operative determination of a matter in issue derived from an engaged process of reasoning.'[160] In Guss v Federal Commissioner of Taxation,[161] Greenwood J explained the operation of the included classes of particular subject matter set out in s 3(2). His Honour commenced by referring to the decision of the High Court in Australian Broadcasting Tribunal v Bond[162] and Mason CJ's articulation of the characteristics necessary for a decision to attract the operation of the ADJR Act, and stated:

The extended inclusive reference to the making of a decision does not have the effect that an act relied upon as presumptive evidence of the decision can be relied upon as a decision for the purposes of the ADJR Act notwithstanding that the act within s 3(2) fails to exhibit the essential features of a decision in the primary sense of the term. In other words, if the act relied upon is not an operative determination of a matter of substance emanating from a deliberative process of reasoning, sophisticated or unsophisticated, there is no decision for the purposes of the ADJR Act.[163]

136 Second, the applicants submit that if, contrary to their primary contention the Court were to find that the issue of a certificate does involve a 'decision', it raises the issue of whether the second criterion mentioned by the plurality in Griffith University v Tang is met, namely, that 'the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from an enactment'.[164] The applicants contend that the certification of a judgment under s 15 does not confer, alter or affect the legal rights of a judgment creditor. An examination of the Foreign Judgments Act 1991 (Cth) reveals that there are no provisions that give the Prothonotary any authority to confer, alter or otherwise affect legal rights and obligations. It was said that if a party to proceedings in an Australian court holds a judgment debt which will found an application under s 15 (which the plaintiffs in the 1998 proceeding did not), the debt created by that judgment is not altered or affected by the issue of a certificate. The certificate does not create a right to enforce the judgment debt in a foreign jurisdiction. Any right to enforce an Australian judgment in a foreign jurisdiction is conferred by the law of that jurisdiction.

137 In my view, the ADJR Act does apply to the issuing of a certificate by the Prothonotary under s 15 of the Foreign Judgments Act 1991 (Cth). When the terms of s 15 are examined, it is clear that the requirement that the Prothonotary 'must issue' the certificate to the judgment creditor is only enlivened in circumstances where 'an application is duly made by a judgment creditor who wishes to enforce in a country a judgment that has been given in an Australian court'. Whether an application is 'duly made' in any particular case will require the Prothonotary to be satisfied about matters such as whether the applicant is 'a judgment creditor who wishes to enforce' in a foreign country a judgment that has been given in an Australian court, whether any relevant stay of enforcement of the judgment in question has expired (s 15(2)), and whether the application conforms with the procedural requirements specified in the Miscellaneous Civil Procedure Rules. Ordinarily, affidavit material addressing each of those matters would be filed in support of the application so as to enable the Prothonotary to be satisfied that the application is 'duly made'. Where the Prothonotary does exercise the power under s 15(1) and issues a certificate, the Prothonotary must implicitly have been, or be taken to have been, satisfied that the application is 'duly made'. In that sense, the act of issuing the certificate may well involve 'an operative determination of a matter of substance emanating from a deliberative process of reasoning, sophisticated or unsophisticated'[165] and thus satisfy the first criterion mentioned in Griffith University v Tang.

138 That a decision making process is involved is demonstrated by the controversy in the present case. To a large extent, the applicants' arguments focus on whether the application for the first and/or second certificate was 'duly made' by the second to fifth plaintiffs, given the operation of s 58(3)(a) of the Bankruptcy Act 1966 (Cth) contended for by the applicants. Their contentions invite scrutiny of the role of the Prothonotary when considering an application for the issue of a certificate and require the Court to make an assessment of whether in the particular circumstances of the case the Prothonotary could reasonably have been satisfied that the application was 'duly made'.

139 I am also satisfied that the second criterion mentioned by the plurality in Griffith University v Tang is met. The certification of a judgment under s 15 does relevantly affect the legal rights of a judgment creditor in that it facilitates the enforcement of the judgment outside Australia by providing a certified evidentiary foundation.

140 In the circumstances, there being a 'decision' to which the ADJR Act applies, s 9(1) operates so as to limit the jurisdiction of this Court to review the decision, but subject to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act).[166]

Does the Supreme Court have jurisdiction to determine this matter by reason of s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)?

141 This issue only arises if the ADJR Act does apply to an application to review the issue of a certificate under s 15 of the Foreign Judgments Act 1991 (Cth).

142 Section 4(1) of the Cross-Vesting Act provides:

Additional jurisdiction of certain courts

(1) Where:

(a) the Federal Court . . . has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

(b) the Supreme Court of a State . . . would not, apart from this section, have jurisdiction with respect to that matter;

then:

(c) in the case of the Supreme Court of a State . . . - that court is invested with federal jurisdiction with respect to that matter;

. . .

143 Section 4(1) is qualified by certain provisions dealing with 'special federal matters'. A matter arising under the ADJR Act, being a matter in respect of which the Supreme Court of a State would not, apart from the Cross-Vesting Act, have jurisdiction is a special federal matter.[167] Section 6(3) empowers the Supreme Court to make an order that a pending proceeding which is a special federal matter be determined by the Supreme Court 'if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of parties.' In considering whether there are 'special reasons', s 6(6) requires that the court must:

(a) have regard to the general rule that special federal matters should be heard by the Federal Court . . . ; and

(b) take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4).

144 Before an order is made under s 6(3), however, s 6(4) requires that a written notice specifying the nature of the special federal matter be given to the Attorney-General of the Commonwealth and the Attorney-General of the State. Where the matter for determination is a special federal matter and the Court does not make an order under s 6(3), the court must transfer the proceeding to the Federal Court: s 6(1).

145 The relationship between s 9 of the ADJR and s 4(1) of the Cross-Vesting Act was recently considered by the Court of Appeal of the Supreme Court of New South Wales (Basten, Gleeson and Leeming JJA) in Hopkins v Governor-General.[168] There the court held that, notwithstanding s 9 of the ADJR Act, the Supreme Court of New South Wales had jurisdiction under s 4(1) of the Cross-Vesting Act with respect to matters in respect of which the Federal Court had jurisdiction under the ADJR Act.[169] Hence, in the present case, the applicants contend that if ss 6(3) and (4) were complied with, the Supreme Court would have jurisdiction to determine this matter.

146 For the foregoing reasons, I have concluded that the declaratory relief sought in the applicants' respective summonses would involve the Court embarking upon a 'review' of a decision to which the ADJR Act applies. Section 9 of the ADJR Act limits the jurisdiction of State courts but is subject to the operation of the Cross-Vesting Act in the case of special federal matters. The present matter is a special federal matter. In such a case, s 6(3) empowers the Supreme Court to order that the proceeding be determined by that court but only if it is satisfied that there are special reasons for doing so, and after the court is satisfied that notices have been given to the relevant Attorneys-General and a reasonable time has elapsed to enable them to consider whether submissions should be made to the Court.

147 In the present case, no written notices have been given to the Attorney-General of the Commonwealth and the Attorney-General of Victoria in this proceeding. When the issue of notices was raised with counsel during the course of oral submissions, Senior Counsel for Mrs Talacko submitted that 'the notification would only have to be made if it had to be made' and their position was that it does not.[170] He added that 'we would want to come back and not have wasted hearing time before Your Honour if the two Attorneys-Generals were not to object.'[171] No contrary submission was made by any other party.

148 Section 6(5) of the Cross-Vesting Act permits the court to direct a party to the proceeding to give a notice in accordance with subsection (4). In the present case it is appropriate that such a direction be given requiring the appointed representative of the estate of the late Mr J E Talacko to give a notice to the Attorneys-General so as to bring forward submissions that would facilitate the Court considering whether there are special reasons for it to order that the substantive issues raised by the applicants' summonses be determined by this Court.

149 While the general rule is that special federal matters should be heard by the Federal Court, s 6(3) nevertheless leaves open the prospect that the Supreme Court may proceed to determine the matter where there are special reasons for doing so. Here, the substantive issues raised by the applicants' summonses involve a review of the conduct of the Prothonotary of this Court in issuing the first and second certificates pursuant to the Foreign Judgments Act 1991 (Cth) and the Miscellaneous Civil Procedure Rules. In my view, those circumstances would be capable of providing a proper basis for this Court to be satisfied that there are special reasons for the proceeding to be determined by this Court. Such a course would also facilitate the efficient and timely resolution of the real issues in dispute between the parties. Accordingly, while the occasion for the Court to be satisfied that there are special reasons has not yet formally arisen, that is the course I would propose to adopt, subject to receiving any submission to the contrary made by the Attorneys-General. Further, the provision of a copy of these reasons to the Attorneys-General should assist them to readily understand the nature of the special federal matter and the manner in which it has arisen and to prepare any submissions in response to the notice.

Alleged errors or deficiencies in the second certificate

150 The applicants contend that notwithstanding that the second certificate has corrected or addressed some of the errors that were present in the first certificate, it is nevertheless defective. First, they say it fails to make any reference to the Bankruptcy Act or the Income Tax Assessment Act 1936 (Cth). That is, the error was said to lie in the fact that the second certificate does not reproduce any reference to the operation of the Bankruptcy Act 1966 (Cth) and the Income Tax Assessment Act 1936 (Cth) of the kind made in paragraph 9 of the first certificate.[172] Further, the applicants submit that if the Court were to find that there was power to issue the first certificate or the second certificate, then the second certificate is misleading and deceptive to the extent that it fails to refer to the effect of s 58(3) of the Bankruptcy Act 1966 (Cth) upon the money orders made by Kyrou J and Wood AsJ, which are clearly 'provable debts' under s 82(1) of the Bankruptcy Act 1966 (Cth) and as such are stayed from enforcement.

151 Given the conclusions I have reached above about the operation of s 58(3) of the Bankruptcy Act 1966 (Cth) in effecting a stay of enforcement of the judgments and orders in question, it is not necessary for me to deal with this issue. But even if, contrary to my view, it were possible for the second to fifth plaintiffs to 'duly' make application for a certificate under s 15(1), in circumstances where the judgment debtor is a bankrupt and the relevant money orders are 'provable debts', it would be desirable for the certificate to address the operation and effect of s 58(3) of the Bankruptcy Act 1966 (Cth).

Whether Mr Findlay or Mrs Talacko is to be appointed as representative of Mr J E Talacko's estate

Rule 16.03 of the General Civil Procedure Rules

152 Rule 16.03 of the General Civil Procedure Rules facilitates the representation of the estate of a deceased person in circumstances where the deceased person was interested in any question in a proceeding but the deceased person has no personal representative. Rule 16.03(1) provides that in such circumstances the Court may -

(a) proceed in the absence of a person to represent the estate of the deceased; or

(b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding.

153 Before making an order under r 16.03, the Court may require notice of the application for the order to be given to any person having an interest in the estate.[173] Where an order is made under r 16.03(1), that order and any judgment or order subsequently given or made in the proceeding 'binds the estate of the deceased person as it would had a personal representative of the deceased been a party': r 16.03(2).

154 In the present case, each of Mr Findlay and Mrs Talacko consents to being appointed to represent the estate of Mr J E Talacko for the purposes of making this application and seeks such an order in their favour as sole representative. Affidavit material has been filed on behalf of each of them deposing to the merits of their respective appointment. That material makes clear that each of Mr Findlay and Mrs Talacko has had a close and ongoing relationship with Mr Talacko over many years.

155 Mrs Talacko is the widow of Jan Emil Talacko. While she has a residence in Glenferrie Road, Malvern, Mrs Talacko currently resides in Prague. There are four children of the marriage, and two of her sons, David and Paul, also reside in Prague. Mrs Talacko has retained solicitors in both Prague and Melbourne, the latter having acted on her behalf for the purposes of making the present application. Mrs Talacko may have, subject to rights of the trustee in bankruptcy, rights in respect of assets of Mr J E Talacko's estate. In that regard, Mrs Talacko has instructed her solicitor in this proceeding that:

(a) her children intend to renounce their rights of inheritance under Czech law with respect to Mr Talacko's deceased estate; and

(b) in those circumstances, she will be entitled under Czech law to the entire deceased estate of Mr Talacko; and

(c) she has been given legal advice in the Czech Republic to the effect of sub para (b) above.[174]

156 Mrs Talacko contends that she is a more appropriate person than Mr Findlay to be appointed as the representative of Jan Emil Talacko's estate under r 16.03 of the General Civil Procedure Rules. She submits that following Mr Talacko's death, Mr Findlay has no status in respect of Mr Talacko or his affairs, the enduring power of attorney which Mr Findlay once held having been revoked by operation of law on Mr Talacko's death.

157 Mr Findlay is a retired lawyer, having practised for many years as a barrister and from 1991, as a solicitor. From 1995 to 30 June 2005 he was the principal of the law firm known as Findlay Arthur Phillips and from 1993 until his retirement from that firm, he acted for Mr Talacko in this proceeding. Mr Talacko appointed him as his attorney under an Enduring Power of Attorney on 21 March 2012. As his attorney, Mr Findlay assisted Mr Talacko in the conduct of his personal affairs and, in particular, with instructing lawyers about the conduct of the various legal proceedings to which he was a party.

158 Mr Findlay first met Mr Talacko in 1964. He has been friends with Mr and Mrs Talacko since then and attended their church wedding in Melbourne on 27 September 1965. Mr Findlay says that as a result of acting for Mr Talacko in proceedings over many years, he is conversant with the facts and claims made by the plaintiffs, and Mr Talacko respectively. At the conclusion of the appeal and special leave application in the 1998 proceeding, and following the making of the sequestration order on 7 November 2011, Mr Findlay says that 'in his capacity as a close friend' he resumed consultation with Mr Talacko in respect of the various litigation on foot in the Supreme and Federal Courts, and also the proceedings in the Czech Republic.

159 Mr Findlay resides in suburban Melbourne. He deposes that during Mrs Talacko's absences overseas, and in particular during her prolonged absence in the months preceding Mr Talacko's death in 2014, he acted as Mr Talacko's carer while he was an in-patient at an aged care facility in Camberwell and later in hospital. During this time Mr Findlay was liaising with doctors and assisting Mr Talacko in the conduct of the various legal proceedings. Following Mr Talacko's death, Mr Findlay arranged Mr Talacko's funeral and paid the fee therefore and collected his ashes afterwards.

160 Mr Findlay acknowledges that he no longer has any formal role or status in respect of Mr Talacko or his affairs. Nevertheless, he contends that he is well-placed to perform the role of representing the estate on this application in the 1998 proceeding. The challenge to the first certificate was initiated by Mr Talacko, at a time when Mr Findlay held an enduring power of attorney. Following Mr Talacko's death, Mr Findlay made a fresh application on 8 November 2014 seeking appointment as representative of the estate in order that he could continue to press the issue. A few days later, Mrs Talacko issued her application seeking essentially the same relief save that she be appointed as the representative of the estate.

Appointment of a sole representative of the estate

161 During the trial of the 2009 proceeding, the second to fifth plaintiffs applied pursuant to r 9.09 of the General Civil Procedure Rules for State Trustees Limited to be added as a party to the proceeding. Separately, Mr Findlay applied to be appointed, pursuant to r 16.03(1)(b), to represent the estate of Mr J E Talacko for the purposes of the trial. Justice McDonald made an order adding State Trustees Limited as the seventh defendant nunc pro tunc from 3 November 2014 and dismissed Mr Findlay's application on discretionary grounds. The judgment delivered by McDonald J in the 2009 proceeding on 7 August 2015 records that State Trustees Limited played no active role in the proceedings.[175]

162 In the present case, neither the solicitors for the trustee in bankruptcy nor State Trustees Limited as the executor pro tem of Mr Talacko's estate has sought to appear before the Court on the hearing of the applications or take any active role in the proceedings.

163 The present applications raise a substantive matter that is of importance to the Court, as well as to the parties, namely whether certificates issued by the Prothonotary in this proceeding, purportedly pursuant to the Foreign Judgments Act 1991 (Cth) and the Miscellaneous Civil Procedure Rules, for use in proceedings in the Czech Republic are irregular, incorrect or invalid.

164 To date, it appears that only the first certificate has been used in proceedings in the Czech Republic.[176] Leaving to one side the conclusions I have reached about their lack of competency to request the issue of such a certificate, it is clear that the second to fifth plaintiffs by their conduct in unilaterally seeking the issue of the second certificate to amend and replace in its entirety the first certificate, must be taken to have recognised and acknowledged that the first certificate does not correctly state the effect of the relevant judgments and orders. Otherwise, no useful purpose would be served by seeking the issue of the second certificate as a replacement for the first. Accordingly, in these circumstances, I am satisfied that the estate of Mr Talacko has a proper interest in raising this matter before the Court.

165 There is a dearth of authority on r 16.03(1)(b), and what factors should guide the exercise of the Court's discretion to appoint a person to represent the estate of the deceased for the purposes of an application or the trial of a proceeding. In Hewitt v Gardner; Hewitt v Gardner,[177] a decision concerning the counterpart provision in New South Wales, r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW),[178] Ward J examined the procedural history of the rule. Her Honour noted that the predecessor to the present rule is found in Part 8 Rule 16 of the old Supreme Court Rules and dates back to s 44 of the Chancery Procedure Act 1852 (15 & 16 Vic c 86), but she added 'many older variants of the rule do not include an equivalent of r 7.10(1)(b)'.[179]

166 Her Honour then turned to consider what r 7.10 contemplates, stating:

Although the present service of Ritchie's Uniform Procedure NSW when addressing r 7.10 appears to contemplate that normally the appointment will be of an administrator ad litem:

An appointment will not be made under this rule without the consent of the proposed appointee, but, subject to this, the court may appoint any person it considers appropriate: Re Curtis & Betts [1887] WN 126; Pratt v London Transport Board [1937] WN 43; Lean v Alston [1947] KB 467; Re Hart; Smith v Clarke [1963] NSWR 627; (1962) 80 WN (NSW) 1120. Normally the person would be appointed administrator ad litem: Dean & Chapter of Ely v Gayford [1853] EngR 332; (1853) 51 ER 896; 16 Beav 561,

on my reading of Dean & Chapter of Ely v Gayford, while that case supports the proposition that the person appointed under such a rule "ought, as nearly as possible, to be the same as would have been appointed administrator ad litem" (at 896-897), it does not support the proposition that an appointee under the rule must necessarily (or would normally) be appointed as an administrator ad litem.[180]

167 Justice Ward was also satisfied that the rule could be used to appoint a personal representative to act as plaintiff, even though the reported cases suggest that historically it has rarely been done.[181] Her Honour summarised the position, stating:

The usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances.[182]

168 Accordingly, her Honour concluded that she was satisfied that 'r 7.10 does empower the appointment of a personal representative to act as a plaintiff in appropriate cases' but recognizing, however, that '[u]ltimately, the question whether a personal representative should be appointed is an exercise of discretion (Tarratt v Lloyd; Green v Green (1989) 17 NSWLR 343 at 350 per Gleeson CJ)'.[183]

169 Under r 16.03(1) the Court may appoint a person to represent the estate for the purposes of the proceeding (para (b)) or proceed in the absence of such a person (para (a)). In the present case, the presence of the respective applicants before the Court and the submissions made on their behalf has been of considerable assistance in understanding the issues raised and in resolving them. In those circumstances, it is appropriate that a representative be appointed.

170 Each of Mr Findlay and Mrs Talacko has demonstrated a sufficient nexus with the late Mr Talacko and his estate to suggest that, in the absence of a personal representative, either of them would be suitable candidates for appointment and be capable of performing the role as representative of his estate. But only one representative is required to perform the role. If, as seems necessary, a choice is to be made between two candidates in a finely balanced contest, I would exercise my discretion in favour of Mrs Talacko, given her status as the widow of the deceased and her desire and willingness to act.

171 Once Mrs Talacko indicated that she was prepared to take on the role as personal representative there was no obvious reason or necessity for Mr Findlay to continue to seek to do so. The submissions made on behalf of Mrs Talacko were to the effect that while she was 'grateful to Mr Findlay for what he's done in the past' nevertheless she was the more appropriate candidate.[184] Further, it was said, even though Mrs Talacko may reside in Prague, she has solicitors in Melbourne acting for her and has been available to give them instructions, and she is fully aware of the proceedings that are taking place in Prague and the use to which the certificates have been put.

172 The submissions made on behalf of Mr Findlay adverted to a concession made in the 2009 proceeding before McDonald J by Mr Glick QC, senior counsel for Mrs Talacko, to the effect that she had a conflict of interest in respect of her position vis-à-vis Mr Talacko and his estate. The submissions made before me clarified that the conflict referred to arose from the fact that both Mrs Talacko and the estate of her late husband were each named as defendants in that proceeding. Mrs Talacko admits that there was conflict in that proceeding but submits that it has no relevance to her fitness as a candidate for appointment to represent the estate in these proceedings. Mrs Talacko is not a party to the 1998 proceedings and having now heard the present applications, I am satisfied that no conflict, real or apparent, has been identified as relevant in these proceedings.

173 The procedure agreed between the parties to the application contemplated that in the event that a 'representative' order is made, appointing either Mr Findlay or Mrs Talacko to represent the estate of Jan Emil Talacko, the Court would then proceed to determine the substantive aspects of the relevant application (that is, paragraphs 3 to 10 of the relevant summons) on the basis of the submissions having been made at the hearing.

174 Having determined that Mrs Talacko should be appointed to represent the estate, I propose making procedural orders as follows:

1. That Judith Gail Talacko be appointed, nunc pro tunc from 8 May 2015, to represent the estate of the first defendant, the late Jan Emil Talacko, pursuant to Rule 16.03(1) of the Supreme Court (General Civil Procedure) Rules 2005, for the purposes of conducting an application for the orders set out in the summons dated 8 May 2015.

175 The summonses issued on behalf of Mr Findlay and Mrs Talacko respectively dated 8 May 2015 also sought substantive relief. For the reasons set out above, I have concluded that the declaratory relief sought in the applicants' summonses involves the Court embarking upon a 'review' of a decision to which the ADJR Act applies. However, because the matter is a special federal matter for the purposes of the Cross-Vesting Act, the Court may order that the proceeding be determined by the Supreme Court but only if it is satisfied that there are special reasons for doing so, and after notices have been given to the relevant Attorneys-General and a reasonable time has elapsed to enable them to consider whether submissions should be made to the Court. To facilitate this course, I propose making orders as follows:

1. That by 4.00 pm on 16 November 2015, Judith Gail Talacko as the appointed representative of the estate of the first defendant, the late Jan Emil Talacko, shall give notice under section 6(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to each of the Attorney-General of the Commonwealth and the Attorney-General of Victoria specifying the nature of the special federal matter raised by her application for the orders set out in the summons dated 8 May 2015, such notice to be accompanied by a copy of these reasons. The notice should include a statement to the effect that if, after considering the matter the Attorneys-General wish to make submissions to the Court in relation to the proceeding, they should do so in the first instance in writing, to be filed and served by 4.00 pm on 7 December 2015.
2. If no submissions are received from the Attorneys-General raising any objection to the Supreme Court proceeding to determine the special federal matter raised, and the Court after taking into account any submission made by the Attorneys-General is satisfied that there are special reasons for the Supreme Court to determine the special federal matter raised, orders should be made as follows:

3.1. A declaration that the Certificate of Finality of Judgments and Orders issued by the Prothonotary of the Supreme Court of Victoria and dated 4 July 2012 (the First Certificate) is invalid.

3.2 A declaration that the Amended Certificate of Finality of Judgments and Orders issued by the Prothonotary of the Supreme Court of Victoria and dated 23 February 2015 (the Second Certificate) is invalid.

3.3 An order requiring the second to fifth plaintiffs to bring to the attention of the courts of the Czech Republic in which the First Certificate has been relied upon or otherwise used, notification that the First Certificate has been declared invalid, as has the Second Certificate which they sought and obtained in April 2015 to amend and replace the First Certificate.

1. In the event that either of the Attorneys-General seeks to intervene and raise any submission about the special federal matter, the matter shall be re-listed for further directions.

176 The parties acknowledge that the appeals from the ruling and orders made by Daly AsJ on 4 February 2015 have been rendered a nullity. In those circumstances, it will be necessary to make orders discontinuing or formally dismissing the appeals.

177 I will hear from the parties on the appropriate form of orders generally, including as to costs.

JAN TALACKO (AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO)

[1] After the applications were heard, a fresh summons was issued by Mrs Talacko dated 26 August 2015 seeking to restrain the first plaintiff in the 1998 proceeding, Dr Jan Talacko, from enforcing the judgment of Kyrou J dated 11 December 2009 or otherwise seeking to use or rely upon the first certificate or the second certificate issued by the Prothonotary until the present summonses have been determined. At the hearing of the fresh summons, it became apparent that a further certificate dated 4 June 2013 (the 'third certificate') had been issued by the Prothonotary at the request of the first plaintiff. This led to further summonses being issued by each of Mr Findlay and Mrs Talacko respectively, seeking relief in respect of the third certificate along similar lines to that sought in respect of the first and second certificates. Orders were made on 22 September 2015 adjourning those summonses to a date to be fixed at or following the delivery of judgment in respect of the present applications.

[2] Commonwealth, Parliamentary Debates, House of Representatives, 29 May 1991, 4218 (The Hon. Michael Duffy, Attorney-General).

[3] See Yoon v Song [2000] NSWSC 1147, at [12].

[4] [2002] VSC 338.

[5] Ibid, at [7]. See also M Davies, A Bell and P Brereton (eds), Nygh's Conflict of Laws in Australia, (LexisNexis Butterworths, 9th ed, 2014), at 936, [41.1].

[6] Talacko v Talacko [2008] VSC 128 (24 April 2008).

[7] Talacko v Talacko [2009] VSC 579 (11 December 2009). The judgment required the defendant to pay to the first plaintiff, and to the second to fifth plaintiffs, respectively, the sum of € 4,740,830, and € 296,079 by way of interest.

[8] Talacko v Talacko [2011] VSCA 71.

[9] Talacko v Talacko [2011] HCATrans 301.

[10] Mr Josef Hlavicka, the Czech lawyer acting for the second to fifth plaintiffs, has provided evidence to both this Court and the Federal Court of Australia on several occasions since 2006 in connection with the suite of litigation conducted between the parties. A number of earlier affidavits sworn by him and filed in other proceedings, including the bankruptcy proceedings in the Federal Court, have been produced as exhibits to other affidavits filed in this proceeding by or on behalf of the parties.

[11] The affidavit of Mr Hlavicka sworn on 9 November 2012 appears as part of 'Ex JGJ-2' to the affidavit of Mr Jonathan Joseph sworn on 16 December 2014.

[12] Affidavit of Mr Hlavicka sworn on 9 November 2012, at [4(i)].

[13] In the Report to Creditors dated 16 January 2012, the trustee in bankruptcy notes that the 'new' Statement of Affairs of the bankrupt 'provided on 23 December 2011, albeit signed on 16 March 2010'... discloses the disposal of several real property assets in the Czech Republic and Slovakia' made within the last 5 years. The Report states that the following properties are listed in the Statement of Affairs as having been transferred but for which no consideration is disclosed:

• Hastalska 12, Prague, Czech Republic, being plot number 823, Prague 1

• Hastalska 15, Prague, Czech Republic, being plot number 860, Prague 1

• Rybna 29, Prague, Czech Republic, being plot number 832, Prague 1

• Ramova 8, Prague, Czech Republic, being plot number 821, Prague 1

• Melantrichova 11, Prague, Czech Republic, being plot number 425, Prague 1

• Kollarova Street, Holesovice, Czech Republic, being plots 309/1, 308/2 and 310

• Kbley, Czech Republic, being land plot no 1964/2 and 1965/4 no 212

• Repy, Czech Republic, being land located at Repy, Prague, Czech Republic

These real property assets are described in the Report to Creditors as having a value exceeding AUD$23.9M.

[14] Affidavit of Mr Hlavicka sworn on 9 November 2012, at [4(ii)].

[15] See Transcript 11/05/15, at 17 (lines 24-28, Mr Guss). The history of the earlier proceedings is set out in the case stated in Talacko v Talacko ((2010) [2010] FCAFC 54; 268 ALR 266, at [4] (per Gray, Mansfield and Mc Kerracher JJ). In the Report to Creditors dated 16 January 2012, the trustee in bankruptcy records the history of the bankruptcy as including the appointment in August 2010 of the official trustee as interim trustee under s 50 of the Bankruptcy Act 1966 (Cth). See also the Schedule to the Order made by North J on 7 November 2011.

[16] Namely, Alexandra Bennett, Martin Talacko and Rowena Talacko.

[17] Section 17(1), deals with 'Rules of Court' and relevantly provides that the power to make rules "extends to making any rules, not inconsistent with this Act or any regulations made under this Act, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act, including . . . (b) prescribing the matters to be proved on an application for the registration of a judgment and for regulating the mode of proving those matters".

[18] Rule 11.11(c) requires that if the application for a certified copy of a judgment is granted, the copy of the copy of the judgment issued shall -

(c) be accompanied by a certificate by the Prothonotary stating -

(i) that the proceeding is at an end except for enforcement of the judgment;

(ii) the claim or claims in respect of which the judgment was given;

(iii) the grounds upon which the judgment was based;

(iv) the rate at which the judgment carries interest;

(v) such other matters as the Prothonotary considers necessary or desirable.

[19] Mr Howells' affidavit appears as exhibit' JGJ-6' to the affidavit of Mr Jonathan Joseph sworn on 16 December 2014.

[21] Paragraphs 9 and 10 of the first certificate state as follows:

9. The said Judgment and order are binding upon the parties to this proceeding and those to whom notice of the hearing was duly and properly given. The said judgment and Order operate res judicata according to law against any contrary contention that might be raised by the Defendant [Mr J E Talacko]. The said Judgment and Order are entitled to be accorded full faith and credit throughout the Commonwealth and its territories. The provisions of the Bankruptcy Act 1966 (Commonwealth) and the Income Tax Assessment Act 1936 (Commonwealth) operate upon parties to proceedings under those enactments within their respective terms but do not operate to affect the finality or the binding and enforceable effect of the said Judgment and Order.

10. By reason of the circumstance that no appeal or other process of any kind has been successfully lodged or raised against any of the other Judgments or Orders of the Court set out in paragraph 6 hereof those Judgments and Orders have become FINAL, BINDING AND ENFORCEABLE according to law.

[22] Affidavit of Mr Hlavicka sworn on 9 November 2012, at [7].

[23] Ibid, at [8]. The letter from the Attorney-General is not reproduced in the materials before the Court on the hearing of the current applications.

[24] Affidavit of Mr Hlavicka sworn on 9 November 2012, at [7].

[29] Ibid, at [17], [18] and [22] (emphasis added).

[30] Affidavit of Ms Lucie Dolanska Banyaiova sworn on 16 December 2014, at [5].

[35] Ibid, at [6] (emphasis in original text).

[37] Supplementary affidavit of Ms Banyaiova sworn on 18 December 2014.

[38] Affidavit of Mr Phelan, sworn 22 December 2014, at [30].

[39] Transcript of Federal Court proceedings before North J, 10/12/2012, at pp 10-11.

[40] Order 3 was expressed in the following terms:

Leave be granted nunc pro tunc from 7 November 2011 to the Applicants pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) to continue to take further steps, including defending or pursuing any appeal, up to judgment against the Respondent [Mr J E Talacko] in the Petition proceedings that have been lodged in their names in the District Court of Prague on 4 November 2011 and which have been assigned numbers 49 EXE 2107/2011-73 and 48 EXE 522/2012-75 provided that no step be taken to enforce any judgment against the Respondent without the prior leave of the Federal Court of Australia in its bankruptcy jurisdiction.

[41] Mr Guss now acts as the solicitor for one of the applicants, Mr Findlay.

[42] Affidavit of Mr Joseph sworn on 16 December 2014, at [22]-[24].

Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules.

[45] See Talacko v Talacko [2014] VSC 238.

[46] See the Ruling of Daly AsJ delivered on 4 February 2015, at [18].

[47] [2005] HCA 7; (2005) 221 CLR 99, at 130-131, [89].

[48] See the Ruling of Daly AsJ delivered on 4 February 2015, at [26].

[51] Exhibit 'JGJ-7' to the affidavit of Mr Joseph sworn on 5 May 2015.

[52] The second to fifth plaintiffs contend that the Prothonotary's power to issue the second certificate derives from the power s 15 of the Foreign Judgments Act 1991 (Cth) and is supported by s 33(3) of the Acts Interpretation Act 1901 (Cth), which provides:

Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

[53] By this order, Kyrou fixed the costs to be paid pursuant to the judgment dated 11 December 2009 in the sum of $ 2,680,239.00.

[54] Affidavit of Mr Joseph sworn on 5 May 2015, at [14]-[15].

[55] See exhibit 'JGJ-9' to the affidavit of Mr Joseph sworn on 5 May 2015.

[57] See exhibit 'JGJ-10' to the affidavit of Mr Joseph sworn on 5 May 2015.

[58] The appeals were initially listed for hearing on 6 May 2015. However, at the request of the second to fifth plaintiffs, the date was altered by consent of the other parties so as to accommodate the unavailability of their counsel, Mr Howells.

[59] See exhibit 'JGJ-11' to the affidavit of Mr Joseph sworn on 5 May 2015.

[60] See exhibit 'JGJ-15' to the affidavit of Mr Joseph sworn on 5 May 2015.

[61] The Second to Fifth Plaintiffs' Outline of Submissions dated 6 May 2015 noted (at [12]) that they 'will be seeking an adjournment of the Appeal hearing to permit them to adduce affidavit evidence of the Donation proceeding and the Registration proceeding.'

[62] Transcript, 07/05/15, at pp 9 (line 19) - 10 (line 23).

[63] See Transcript 07/05/15, at p 9 (line 5).

[64] Under r 77.03(2), if special leave is granted, the jurisdiction and powers of an Associate Justice may be exercised by a Judge of the Court.

[65] See Maher v Wallace Dairy Co Ltd [1984] VicRp 10; [1984] VR 129, at 133 and Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (No. 2) [1984] VicRp 21; [1984] VR 307.

[66] See email from Mr Masters, junior counsel for Mrs Talacko, to the Court (and copied to all parties) dated 8 May 2015, enclosing the joint memorandum. At the mention hearing on 8 May 2015, Dr Sharpe confirmed that she consented to the making of the fresh applications in the form proposed.

[67] A copy of these summonses was also to be provided to the first plaintiff, Dr Jan Talacko, who did not appear at the hearing on 8 May 2015.

[68] The terms in which this undertaking was expressed were enlarged by consent on 22 September 2015, once the parties became aware of the existence of the third certificate.

[69] Section 19 of the Administration and Probate Act 1958 (Vic) provides that the estate of an intestate shall vest in the State Trustees between death and grant of administration.

[70] See ss 8 and 9.

[71] Unreported, Supreme Court of Victoria, No 10559/91, Tadgell J, 2 November 1992, BC9200615.

[72] Section 15(2) provides:

(2) An application may not be made until the expiration of any stay of enforcement of the judgment in question.

[73] Second to Fifth Plaintiffs' Further Outline of Submissions, dated 10 May 2015, at [5].

[74] [1981] HCA 47; (1981) 147 CLR 549.

[77] [1991] FCA 598; (1991) 33 FCR 70.

[79] Unreported, Federal Court of Australia, Hill J, 7 October 1994, BC9407148.

[80] Ibid, at 2-3. This passage has been cited with approval in McNamara v San (No 3) [2010] FCA 227; (2010) 183 FCR 328, at 346, [67] per Graham J; 7Steel Building Solutions Pty Ltd v Wright [2100] FCA 328 at [10] per Flick J; Health Services Union v Jackson (No 3) [2015] FCA 694, at 14 per Tracey J.

[81] [1984] HCA 44; (1984) 154 CLR 589.

[83] (1988) 18 FCR 322.

[86] Ibid, at 132. See also at 143, per Dawson and Toohey JJ, where their Honours said that because the judgment in question was for a liquidated sum and thus was a debt provable in the bankruptcy of each appellant, the effect of s 58(3)(a) was such that the respondents could 'do no more in respect of the judgment than prove in each bankruptcy.'

[87] [2007] HCA 56; (2007) 234 CLR 52.

[88] Ibid, at 59, [13] (per (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[89] [2005] FCAFC 260; (2005) 148 FCR 437.

[91] [1996] FCA 1701; (1996) 69 FCR 99. See also the commentary in P McQuade & M Gronow (eds), McDonald, Henry & Meek's Australian Bankruptcy Law & Practice, (6th ed, 2004), at [58.3.15].

[92] Ibid, at 109G (per Beaumont J, with whom Black CJ and Tamberlin J agreed).

[94] [1984] HCA 44; (1984) 154 CLR 589, at 595.

[95] Fraser v Commissioner of Taxation [1996] FCA 1701; (1996) 69 FCR 99, at 111E.

[97] The definition is set out at paragraph [66] above.

[98] [2005] FCAFC 260; (2005) 148 FCR 437.

[100] [1994] FCA 1262; (1994) 53 FCR 70 ('Re Johnson').

[101] (1955) 17 ABC 11.

[102] (1886) 17 QBD 755 at 759.

[103] [1994] FCA 1262; (1994) 53 FCR 70, at 75 citing (1955) 17 ABC 11, at 12.

[104] (1988) 18 FCR 568.

[105] (1968) 13 FLR 101.

[106] (1968) 13 FLR 101, at 103.

[107] [1994] FCA 1262; (1994) 53 FCR 70, at 76.

[108] [1996] FCA 1701; (1996) 69 FCR 99.

[110] See also Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52, where the High Court was dealing with the question of whether a costs order made after bankruptcy, but in respect of a proceeding commenced prior to bankruptcy, was a provable debt within the meaning of s 82. Ultimately the Court held, by majority, that the respondent was not required to obtain leave in order to make an application for costs. In discussing the operation of ss 58(3) and 82, however, the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) observed (at 76, [67]) that, as the order for costs was not a provable debt, 'the stay contained in s 58(3) of the Bankruptcy Act was not engaged.'

[112] (1977) 30 FLR 108, at 115 (citations omitted).

[113] Second to Fifth Plaintiffs' Further Outline of Submissions, dated 10 May 2015, at [5].

[114] Mr Hlavicka swore a later affidavit dated 28 November 2014 (filed in the 2009 proceeding) wherein he 'confirmed the contents of' this affidavit.

[115] Second to Fifth Plaintiffs' Further Outline of Submissions, dated 10 May 2015, at [8].

[116] Transcript 10/12/12, p 3, lines 3-4 (being exhibit 'JGJ-4' to the affidavit of Mr Joseph sworn on 16 December 2014).

[123] Ibid, p 10, line 12 - p 11, line 19 (emphasis added).

[127] Transcript of Federal Court proceedings before North J, 10/12/2012, at p 10.

[128] Transcript 11/05/15 at pp 67-68.

[129] Second to Fifth Plaintiffs' Further Outline of Submissions, dated 10 May 2015, at [11].

[130] Transcript 13/05/15 at p 108; see also at p 131.

[131] See Second to Fifth Plaintiffs' Outline of Submissions dated 6 May 2015, at [10]-[11].

[132] See Second to Fifth Plaintiffs' Further Outline of Submissions dated 10 May 2015, at [9].

[134] The expression 'recognition' appears in s 13 of the Foreign Judgments Act 1991 (Cth), and the related expressions 'recognising' and 'recognised' appear in s 12. Section 18, which is a transitional provision, deals with the registration of judgments 'recognised' under State or Territory law.

[135] Butterworths' Australian Legal Dictionary, 1997, at 444.

[136] [1996] FCA 1701; (1996) 69 FCR 99, at 109.

[137] In Victoria, nowadays s 3(5) of the Supreme Court Act 1986 (Vic) requires that a judgment in any proceeding must be enforced in accordance with Chapter I of the General Civil Procedure Rules and not otherwise. New simplified warrants of execution have replaced the old writs of execution, and enforcement of a judgment has replaced the concept of execution on a judgment. Section 3(5) of the Supreme Court Act 1986 also operates to abolish the bringing of a separate proceeding as a mode of enforcing an order of the Court. See generally the commentary on r 66.01 in LexisNexis Butterworths, Civil Procedure Victoria, at 5795ff.

[138] An account of the office of Prothonotary is to be found in the judgment of Gillard J in Kimseal Pty Ltd v Kimberley Plastics Pty Ltd [1964] VicRp 15; [1964] VR 99, at 103-104.

[139] [1994] VicRp 46; [1994] 1 VR 652.

[141] [1964] VicRp 15; [1964] VR 99.

[142] See for e.g., Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612; Halsbury's Laws of Australia, Practice & Procedure, at [325-10].

[143] [1989] HCA 45; (1989) 168 CLR 1, at 16. The nature of 'inherent jurisdiction' was also discussed by Menzies J in The Queen v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1 at 7.

[144] [2015] HCA 36.

[145] Ibid, at [43] per French CJ, Kiefel, Bell, Gageler and Gordon JJ, citing Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, at 623.

[146] [2015] HCA 36, at [62].

[147] [2015] HCA 36, at [63].

[148] Kay v DPP (Cth) [2003] VSC 264.

[149] See LexisNexis Butterworths, Civil Procedure Victoria, vol 1, at [56.01.0].

[150] See De Smith, Woolf and Jowell, Judicial Review of Administrative Action, (Sweet & Maxwell, 5th ed, 1995), Chs 14-16; New Zealand Waterside Workers' Federation Industrial Association of Workers v Frazer [1924] NZLR 689, at 706-707, per Salmond J.

[151] See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow [1910] HCA 33; (1910) 11 CLR 1, at 21-22; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 399.

[152] [1995] HCA 58; (1995) 184 CLR 163,

[153] Ibid, at 175-176 (per Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[154] [2005] HCA 7; (2005) 221 CLR 99.

[155] Ibid, at 121, [60] per Gummow, Callinan and Heydon JJ.

[156] [1990] HCA 33; (1990) 170 CLR 321.

[157] [2005] HCA 7; (2005) 221 CLR 99, at 122, [61] citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 337, per Mason CJ, Brennan J and Deane J agreeing.

[158] [2005] HCA 7; (2005) 221 CLR 99, at 130, [89].

[159] See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 335-339, per Mason CJ, adopting passages from the judgment of Deane J in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80, at 100.

[160] Guss v Federal Commissioner of Taxation [2006] FCAFC 88; (2006) 152 FCR 88, at 106-112, per Greenwood J.

[161] [2006] FCAFC 88; (2006) 152 FCR 88.

[162] [1990] HCA 33; (1990) 170 CLR 321, at 336.

[163] [2006] FCAFC 88; (2006) 152 FCR 88, at 113, [97].

[164] [2005] HCA 7; (2005) 221 CLR 99, at 130-131, [89].

[165] Guss v Federal Commissioner of Taxation [2006] FCAFC 88; (2006) 152 FCR 88, at 113, [97] (per Greenwood J).

[166] The 'note' to s 9(1) states that it 'has effect subject to the Jurisdiction of Courts (Cross-Vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.

[167] See s 3(1) definition of 'special federal matter' (at paragraph (c)).

[172] The relevant passage in paragraph 9 of the first certificate stated:

The provisions of the Bankruptcy Act 1966 (Commonwealth) and the Income Tax Assessment Act 1936 (Commonwealth) operate upon parties to proceedings under those enactments within their respective terms but do not operate to affect the finality or the binding and enforceable effect of the said Judgment and Order.

[174] Affidavit of Mr Joseph sworn on 16 December 2014, at [26].

[175] See Talacko v Talacko [2015] VSC 287, at [34].

[176] The second to fifth plaintiffs have relied on the first certificate in the petition proceedings in the Czech Republic. The first plaintiff, Dr Talacko, has also sought to rely upon the first certificate in the 'Set Aside' proceedings in the Czech Republic commenced in Prague by his late mother on 20 April 2012. The third certificate, which was issued at the request of Dr Talacko and is in the same (or substantially the same) terms as the first certificate, does not appear to have been relied upon or used in any proceedings to date.

[177] [2009] NSWSC 705.

(a) may order that the proceedings continue in the absence of a representative of the deceased person's estate, or

(b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed.

[179] Ibid, at [77] (emphasis in original). Rule 7.10(1) provides:

This rule applies to any proceeding in which it appears to the court:

(a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or

(b) that the executors or administrators of a deceased person's estate have an interest in the proceedings that is adverse to the interests of the estate.

[180] Ibid, at [78]. See also the observations made by Austin J in Aliperti v Official Trustee [2000] NSWSC 315, at [6] when discussing the origin of Pt 8r 16 of the old Supreme Court Rules.

[184] Transcript 13/05/15 at p 163, lines 21-22.