Talacko, in the matter of Talacko v Talacko

REASONS FOR JUDGMENT 1 On 4 March 2010 the applicants filed an application in the Bankruptcy jurisdiction of the Court pursuant to the provisions of ss 30, 50 and 78 of the Bankruptcy Act 1966 (Cth) ("the Act") seeking orders that the Court direct the Official Trustee or a registered trustee to take control of the respondent's property from the date of the order until a date specified by the Court. 2 The application also sought interim orders in the following terms: "3. The Court directs that the Official Trustee or a registered trustee take control of the respondent's property from the date of this order until a date specified by the Court. 4. The respondent and Michael Witt of Findlay Arthur Phillips forthwith deliver up to the District Registrar all passports of the respondent. 5. In the alternative to 4, upon provision of a suitable undertaking to the Court, Michael Witt of Findlay Arthur Phillips hold the respondent's passport until further order. 6. The respondent be ordered not to leave the State of Victoria until further order. 7. The respondent be ordered not to attend any point of international departure until further order. 8. The respondent not apply for any other passport until further order." 3 On 5 March 2010 Dodds‑Streeton J made the following orders: "UPON THE UNDERTAKING OF Michael Witt of Findlay Arthur Phillips to hold the Respondent's passports and not return them to the Respondent or any other person at the Respondent's direction unless the Court so orders or the Applicants' solicitors consent in writing, and that otherwise the undertaking shall continue until 5:00pm on 24 March 2010. THE COURT ORDERS THAT: 1. Until further order, the Respondent, Jan Emil Talacko, be restrained from taking any further steps by himself or by his employees, agents or attorneys for the purpose of or in furtherance of selling, transferring, donating or otherwise dealing with any of the properties listed in Attachment "A". 2. The Court directs that James Stewart of Ferrier Hodgson, a Registered Trustee, take control of the Respondent's property until further order. 3. Liberty to apply be reserved. 4. The time for service of this application be abridged. 5. Costs be reserved. 6. The further hearing of the application is adjourned until 24 March 2010." 4 The circumstances leading up to the orders made by Dodds‑Streeton J on 5 March 2010 are set out in her Honour's reasons for judgment and I do not propose to repeat them but rather incorporate them by reference in these reasons: [2010] FCA 193. 5 On 10 March 2010 the respondent filed an application for leave to appeal from the judgment and orders of Dodds‑Streeton J on 5 March 2010 and also applied for a variation or discharge of that order and a discharge of the undertaking given by the respondent's solicitor. 6 On 17 March 2010 Ryan J refused the application for leave to appeal and dismissed the application for variation or discharge of the orders made on 5 March 2010 and the undertaking given that day by the respondent's solicitor. 7 The adjourned hearing of the application initially made before Dodds‑Streeton J came on for hearing before me on Wednesday 24 March 2010. On that day I was informed by counsel for the applicants that bankruptcy notices numbered VN 403/2010 and VN 404/2010 were defective and should be set aside. It followed that the direction that Mr James Stewart a Registered Trustee, take control of the respondent's property until further order should also be set aside and on that day before the luncheon adjournment I made the following orders: "1. The bankruptcy notices issued by the applicants against the respondent on 1 March 2010 and served on him on 3 March 2010 are set aside forthwith. 2. The direction that James Stewart of Ferrier Hodgson, a Registered Trustee, take control of the property of the respondent be terminated with effect on and from 2.00pm this day, 24 March 2010. 3. The applicants pay the costs and expenses of the said James Stewart of and incidental to his taking control of the property of the respondent including the costs of and incidental to his application to the Court filed on 23 March 2010 and his reasonable remuneration in relation to his taking control of the property of the respondent. In default of agreement as to such costs, expenses and remuneration, such costs, expenses and remuneration be fixed by the Court. 4. The further hearing of the proceeding be adjourned to not before 2.30pm this day. 5. Subject to the order in paragraph 3 hereof, the costs of all parties of and incidental to the hearing this day be reserved for further consideration." 8 I did not accede to the respondent's application that the whole of the proceeding be dismissed. 9 When the hearing resumed after the luncheon adjournment I was informed that bankruptcy notices numbered VN 570/2010 and VN 571/2010 had been issued by the Official Trustee. A copy of these bankruptcy notices are annexed to these reasons as Schedule A. 10 The hearing was not concluded on 24 March 2010 and on that day upon the undertaking of the respondent's solicitor to retain the respondent's passports until 5.00pm on 25 March 2010, I ordered that the respondent be restrained until that time or further order from disposing of or otherwise alienating any of his property. 11 The hearing resumed on Thursday 25 March 2010. 12 On the morning of 25 March 2010 the applicants filed an application in this proceeding in which they sought orders pursuant to ss 30 and 50 of the Act in the following terms: "1. Until further order, the Respondent, Jan Emil Talacko, be restrained from taking any further steps by himself or by his employees, agents or attorneys for the purpose of or in furtherance of selling, transferring, donating or otherwise dealing with any of the properties listed in Attachment "A". 2. The Court directs that the Official Trustee or a registered trustee take control of the respondent's property from the date of this order until a date specified by the Court. 3. The respondent and Michael Witt of Findlay Arthur Phillips forthwith deliver up to the District Registrar all passports of the respondent. 4. In the alternative to 4, upon provision of a suitable undertaking to the Court, Michael Witt of Findlay Arthur Phillips hold the respondent's passport until further order. 5. The following affidavits filed by the Applicants in Proceeding No. VID 142 of 2010 are taken to be filed in this proceeding: (a) the affidavit of Howard Rapke sworn 4 March 2010; (b) the supplementary affidavit of Howard Rapke sworn 5 March 2010; (c) the third affidavit of Howard Rapke sworn 5 March 2010; (d) the fourth affidavit of Howard Rapke sworn 10 March 2010; (e) the affidavit of James Stewart sworn 12 March 2010; (f) the affidavit of James Stewart sworn 17 March 2010; (g) the fifth affidavit of Howard Rapke sworn 23 March 2010 (h) the affidavit of Catherine Hollis sworn 23 March 2010; and (i) the affidavit of James Stewart sworn 25 March 2010. 6. Costs reserved. … 7. The Court directs that the Official Trustee or a registered trustee take control of the respondent's property from the date of this order until a date specified by the Court. 8. The respondent and Michael Witt of Findlay Arthur Phillips forthwith deliver up to the District Registrar all passports of the respondent. 9. In the alternative to 8, upon provision of a suitable undertaking to the Court, Michael Witt of Findlay Arthur Phillips hold the respondent's passport until further order. 10. Liberty to apply be reserved. 11. The time for service of this application be abridged. 12. Costs reserved." 13 It was accepted by the applicants at that time that the earlier proceeding should be dismissed and that they wished to proceed with the second application being this proceeding. Accordingly, I made the following orders: "1. Proceeding VID 142 of 2010 be dismissed. 2. Michael Witt of Findlay Arthur Phillips be discharged from his undertaking given to the Court on 24 March 2010. 3. The respondent, Jan Emil Talacko, be discharged from the restraint in order 1 of the order of Goldberg J of 24 March 2010 restraining him until 5.00pm on 25 March 2010 or until further order from disposing of, destroying or otherwise alienating any of his property. 4. Order 1 of the order made by Justice Dodds‑Streeton on 5 March 2010 be discharged. 5. The applicants pay the respondent's costs of and incidental to this proceeding." 14 At the same time, in order to preserve the status quo pending the hearing and determination of the interlocutory application in this proceeding, I also made orders that the respondent be restrained from: (a) taking the passports presently in the possession of his solicitor Michael Witt of Findlay Arthur Phillips out of the possession of Michael Witt until 5.00pm on 25 March 2010 or further order; (b) attending any point of international departure from Australia until 5.00pm on 25 March 2010 or further order; (c) taking any further steps by himself or by his employees, agents or attorneys for the purpose, or in furtherance of selling, transferring, donating or otherwise dealing with any of the properties listed in Attachment "A" to the order until further order; (d) disposing of, destroying or otherwise alienating any of his property until 5.00pm on 25 March 2010 or further order. At the end of the hearing on 25 March 2010, I extended these orders until further order. 15 On 29 March 2010 I varied paragraph 4 of the second order I made on 25 March 2010 in the following terms: "The respondent, Jan Emil Talacko, be restrained until further order from disposing of, destroying or otherwise alienating any of his property, save for the purpose of satisfying the orders made against him in Supreme Court of Victoria Proceeding No. 7393 of 1998." 16 I made the orders on 25 and 29 March 2010 relating to the respondent's passports and the restraint on him attending any point of international departure from Australia so as to preserve the status quo pending the hearing and determination of the case stated. I did so relying upon the observations of Dixon CJ in Tait v R (1962) 108 CLR 620 at 624 and Hayne J in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641. I left open the question whether I had power under s 30 to make such an order. 17 In the course of the hearing Senior Counsel for the respondent submitted that the Court had no jurisdiction whether under s 30 of the Act or otherwise to restrain the respondent from leaving the jurisdiction or requiring him to deliver up his passports to the Court or to some other person, such as his solicitor. Counsel for the applicant contested this submission and submitted that the Court did have such jurisdiction. 18 Senior Counsel for the respondent submitted that the power granted to the Court by s 30(1) of the Act did not permit the Court to make an order restricting the common law right of travel of an Australian citizen. He submitted that Ryan J erred in holding to the contrary: Talacko v Talacko [2010] FCA 239 at pars [31]‑[33]. He submitted that in Re Bayliss; Ex parte Hadotone Pty Ltd v Official Trustee in Bankruptcy (1987) 15 FCR 91, Spender J, after an extensive review of the relevant authorities and principles of construction concluded that s 30(1)(b) of the Act did not provide a general power sufficient to justify the order for the issue of certain warrants and search and seizure more extensive than was authorised expressly by s 130 of the Act. 19 Senior Counsel for the respondent submitted that the manner in which Spender J reasoned was the correct manner in which the question of whether s 30(1)(b) of the Act provided a power to prevent the respondent from exercising his common law right to travel freely outside Australia. He also relied on pars [43]‑[45] of the reasons of Dodds‑Streeton J on 5 March 2010. 20 Justice Ryan had rejected this submission in the application brought before him for variation of the orders of Dodds‑Streeton J in pars [26]‑[28] of his reasons for judgment. He also relied upon the observations of Cooper J in Re Allan Joseph Brazel; Ex parte Royal Nominees Pty Ltd [1995] FCA 404 at par [26] and [33]. 21 In the course of argument I expressed concern that I was being asked to decide a matter of significant principle where there were, in effect, conflicting reasons of single judges of this Court. 22 Senior Counsel for the respondent then submitted that I should reserve a question for the consideration of a Full Court that question being the extent of the Court's jurisdiction under s 30 of the Act. I pointed out to Counsel that it was normally preferable for all contentious matters to be resolved at first instance and then have all the matters brought before the Full Court. If I reserved a question on the extent of the Court's power under s 30 before the Full Court it would fragment the proceeding. Senior Counsel submitted that as this was an interlocutory hearing by the time the matter reached the Full Court on all of the issues the question of the Court's power under s 30 of the Act would probably be of historical interest only having regard to the sequence of events which usually follow the issue and service of a bankruptcy notice. I considered that there was merit in this submission. 23 Accordingly, I decided that the appropriate step to take was to state a special case for the consideration of the Full Court rather than reserve a question. 24 I therefore propose to order that a special case and question be stated for the consideration of the Full Court, namely: Do the provisions of s 30(1) of the Bankruptcy Act 1966 (Cth) empower the Court to order that a person in respect of whom a bankruptcy notice has been issued pursuant to the provisions of the Act - (a) be restrained from leaving the jurisdiction; (b) be required to deliver up his or her passport or passports to the Court or to any other person.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.