Talacko v Jan Talacko as Executor of the Estate of Helena Marie Talacko & Ors; Talacko v Bennett & Ors; Talacko v Jan Talacko as Executor of the Estate of Helena Marie Talacko [2020] HCATrans 169 (16 October 2020)

Last Updated: 19 October 2020

[2020] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M8 of 2019

B e t w e e n -

JUDITH GAIL TALACKO

Applicant

and

JAN TALACKO AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO

First Respondent

ALEXANDRA BENNETT

Second Respondent

MARTIN TALACKO

Third Respondent

ROWENA TALACKO

Fourth Respondent

ALEXANDRA BENNETT AND DAVID ADAMS AS EXECUTORS OF THE ESTATE OF MARGARET HELEN TALACKO

Fifth Respondent

JAN EMIL TALACKO

Sixth Respondent

DAVID TALACKO

Seventh Respondent

PAUL ANTHONY TALACKO

Eighth Respondent

STATE TRUSTEES LTD

Ninth Respondent

Office of the Registry
Melbourne No M9 of 2019

B e t w e e n -

JUDITH GAIL TALACKO

Applicant

and

ALEXANDRA ANN BENNETT

First Respondent

MARTIN THORBURN JAN TALACKO

Second Respondent

ROWENA KIRSTEN EVE TALACKO

Third Respondent

ALEXANDRA ANN BENNETT AND DAVID ADAMS AS EXECUTORS OF THE ESTATE OF MARGARET HELENA TALACKO

Fourth Respondent

JAN TALACKO AS EXECUTOR OF THE ESATE OF HELENA MARIE TALACKO

Fifth Respondent

ESTATE OF JAN EMIL TALACKO (DECEASED) (AN UNDISCHARGED BANKRUPT)

Sixth Respondent

DAVID TALACKO

Seventh Respondent

PAUL ANTHONY TALACKO

Eighth Respondent

PETER ANDREW NOEL TALACKO

Ninth Respondent

AMANDA MAREE FISCHER

Tenth Respondent

STATE TRUSTEES LTD (ACN 064 593 148)

Eleventh Respondent

Office of the Registry
Melbourne No M10 of 2019

B e t w e e n -

JUDITH GAIL TALACKO

Applicant

and

JAN TALACKO AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO

First Respondent

ALEXANDRA ANN BENNETT

Second Respondent

MARTIN THORBURN JAN TALACKO

Third Respondent

ROWENA KIRSTEN EVE TALACKO

Fourth Respondent

ALEXANDRA ANN BENNETT AND DAVID ADAMS AS EXECUTORS OF THE ESTATE OF MARGARET HELENA TALACKO

Fifth Respondent

ESTATE OF JAN EMIL TALACKO (DECEASED) (AN UNDISCHARGED BANKRUPT)

Sixth Respondent

DAVID TALACKO

Seventh Respondent

PAUL ANTHONY TALACKO

Eighth Respondent

PETER ANDREW NOEL TALACKO

Ninth Respondent

AMANDA MAREE FISCHER

Tenth Respondent

STATE TRUSTEE LTD (ACN 064 593 148)

Eleventh Respondent

Applications for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 12.30 PM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR J.B. MASTERS in Melbourne and MS N.A. WOOTTON appearing in Sydney, for the applicants in each of the applications. (instructed by Strongman & Crouch)

MS W.A. HARRIS, QC: If the Court pleases, I appear with MR K.A. LOXLEY for the first respondent in M8 and in M10, and the fifth respondent in M9, along with my client, Jan Talacko. (instructed by Patrick & Associates)

BELL J: Just to be clear, is that the Jan Talacko on behalf of the estate of Helena Talacko?

MS HARRIS: Yes, your Honour.

BELL J: Yes, thank you.

MR P.H. SOLOMON, QC: If your Honours please, I appear with MR O.M. CIOLEK for the same four parties in each application - in M8, the second, third, fourth and fifth respondents; in M9, the first, second, third and fourth respondents; and, in M10, the second, third, fourth and fifth respondents. (instructed by Brand Partners)

BELL J: If, without any lack of courtesy, we could refer to those as Alexandra, Martin and Rowena, and the executors of the estate of Margaret, being the widow of Peter - do I have that right?

MR SOLOMON: Yes, you do, your Honour. If your Honour wants the shortcut we use, without discourtesy, they could be described as the “Sydney Talackos”.

BELL J: Yes, I see, thank you. Now, we have a submitting appearance for Peter Andrew Noel Talacko and Amanda Maree Fischer. As to David Talacko and Paul Talacko, who, to adopt your terminology might be described as the “Czechoslovakian Talackos”, am I right in understanding they have played no part in the proceedings to date?

MR SOLOMON: That is correct, your Honour.

BELL J: Yes. Is that the same position in relation to the estate of Jan Emil Talacko and the State Trustees Limited?

MR SOLOMON: Yes, your Honour, no active role.

BELL J: Yes, all right. I think perhaps we might be assisted by hearing first from you, Ms Harris.

MS HARRIS: If your Honours please, I am very happy to go first. As between Mr Solomon and I, we had agreed that perhaps he would speak first on behalf of the respondents.

BELL J: Very well, Mr Solomon, we would be assisted by hearing from you first, in that case.

MR SOLOMON: Thank you, your Honours. Your Honours, I should be able to encompass the submissions we seek to make fairly briefly. They are these. At the time that the donation agreements were entered into, in May 2009, my client possessed a valuable chose in action. Valuable chose in action was the right conferred under clause 6 of the terms of settlement to enter judgment against Jan Emil Talacko for equitable compensation. That right, the right to enter judgment, was of course unaffected by the conspiracy.

.....my client in December 2009 obtained a very substantial judgment.....in addition at all times, whether before or after the conspiracy, that chose in action could have been turned to account by assigning for value the equitable compensation which stood to be quantified by Justice Kyrou.

In so turning it to account in a commercial marketplace, a prospective assignee might want to know four things. First, what was the prospect – so this is as at May 2009, as at the moment the donation agreements were entered into – of obtaining a judgment; second, what was the likely judgment sum; third, what mechanisms for enforcement were likely then to be available; and, fourth, what were the prospects of those identified mechanisms? All of that should be seen thus far as uncontroversial.

Upon entry into the donation agreements my clients contend that they immediately suffered loss and damage. Judy Talacko, however, contends that there was no loss and damage suffered upon entry into the donation agreement. Before coming to the submissions we make, which are short, it is useful to identify.....the question which can conveniently be found in the passage in Sellars contained in the application book in the judgment of Justice McDonald delivered 7 December 2018, at page 11. It is paragraph 5 ‑ ‑ ‑

BELL J: What page number?

MR SOLOMON: I am sorry, your Honour, page 11.

BELL J: Thank you.

MR SOLOMON: It is paragraph 5 of the judgment, page 11 of ‑ ‑ ‑

GAGELER J: Mr Solomon, what is the bottom line? Where are we going with this? Are you arguing the merits of the appeal point or are you seeking to make some other point?

MR SOLOMON: Let me turn immediately to my point, your Honour. We make two points. The first point is we identified the opportunity we had. The opportunity we had is, but for the donation agreement, my clients would have sought to avail themselves the opportunity of recovering the judgment debt by recourse to Jan Emil’s properties by bankrupting the judgment debtor and therefore or thereby have recovered the judgment debt. That is the opportunity. That is the thing.....for which an assignee of our chose in action would have agreed to pay money. So that is the opportunity.

I now, in respect of the opportunity, want to identify what the judgment which, in essence, the matters..... If your Honours go, in Justice McDonald’s judgment, to paragraph 54, please. His Honour Justice McDonald has found that my clients had a 75 per cent chance of recovering the judgment debt by “resort to the Properties”. It is at page 28 in the application book, paragraph 54 in his Honour’s judgment.

Although there.....set out on page 22, the findings in the judgment on how the opportunity would have been availed of. My clients would have served bankruptcy notices. They would have caused Jan Emil to surrender his passport. There would have been a sequestration order, a refusal to transfer, a compulsion to transfer. The trustee would have been registered in respect of the properties. They would have been sold and my clients would have recovered moneys, all on these findings, in September 2013.

So in respect of the opportunity that I identified there are three findings relevant to it in the judgment. First, my clients would have sought to avail themselves the opportunity of recovering the judgment debt by recourse to the properties, by bankrupting the judgment debtor and recovering the judgment debt in the way set out at paragraph 54. Second, the plaintiffs would not have sought to recover the judgment debt by recognition and enforcement in the Czech Republic. Third, they would have received the proceeds of sale by 30 September 2013.

So that is the first of two points. That is the opportunity for which we contended before Justice McDonald. The second point then is the loss. The donation agreement caused our clients to lose that valuable opportunity. That opportunity, that prospect – recovering the judgment against the putative debtor’s properties by bankrupting the judgment debtor and recovering the judgment debt was lost. It could not be ‑ ‑ ‑

GAGELER J: Not entirely. I mean, is this not the exercise at paragraph 89 his Honour goes through?

MR SOLOMON: I do not seek to make this a matter of characterisation because that will cause inquiry as to how important that is, but the opportunity identified was lost and there was instead an alternative opportunity still being availed of. So that insofar as my clients had this opportunity, what Justice McDonald found they would have availed themselves of, the thing that they had a 75 per cent chance successfully of prosecuting, that was removed, that was no longer available.

Our submission is that the conspiracy caused that loss. That loss then was valued, cautiously, by Justice McDonald. Justice McDonald valued it by taking the two integers, the opportunity lost - your Honours at paragraph 89 - a 75 per cent prospect, and the opportunity remaining which I will come to now.

The opportunity remaining.....opportunity.....a donation proceeding against the transferees of the property in the Czech Republic, and as at December 2018 that was still ongoing and his Honour concluded – and that having been completed, a further proceeding, an enforcement proceeding in the Czech Republic eight or nine years after.....the first proceedings on foot and progressing and his Honour concluded that there was a 20 per cent prospect that in time it would cause my clients to have the opportunity to recover the judgment debt.

We submit, and it is put against us to the contrary, that we sustained an immediate loss upon the donation agreement being entered into. I do not seek to be repetitive. The loss is as I identified it. It was the opportunity as framed by me that went. It could not come back.

BELL J: Appreciating that submission, Mr Solomon, why is not the issue that is raised in ground 1(a) of the application one of importance? It may be that you are right, Mr Solomon, but the other side of the coin is that in circumstances where the chance to recover the judgment debt has not been lost in that the judgment debt may be recovered in the Czechoslovakian proceedings, there is an issue about how one characterises the damage that was asserted and has been found by the Court of Appeal and then assessed by Justice McDonald. One sees the force of your argument, but it is perhaps difficult to see that there is not a lively question of principle raised by the applicants’ ground.

MR SOLOMON: Framed in the way the applicants frame it and accurately, with respect, describe.....there is some doctrinal interest in the.....and when this very matter was first before this Court – including Justice Gageler in December 2017 – framed that level of doctrine.....a question that might have excited interest on the characterisation matter.

The reason why your Honours should not be persuaded to take the case includes because that question, in effect, has now been subsumed by the treatment of the facts of Justice McDonald. There are two features of that treatment that I wish to identify. The first feature is that his Honour has found what opportunity we would have availed ourselves of and so when the matter was conceptualised in 2017 – before the Court in 2017 – that was unknown. It is now known in this matter what that opportunity is and I have already submitted that it was lost.

The second relevant feature of Justice McDonald’s judgment is that his Honour has - must have concluded on the balance of probabilities that we will fail to recover the judgment and so that, if this Court is evaluating, as a question of characterisation, whether there is a matter here worthy of consideration, the loss consequent on equitable fraud or hear in play, in fact, at trial, on the facts, as would present, his Honour Justice McDonald, on the balance of probabilities, has concluded that we will not recover the judgment debt.

GAGELER J: You are saying that that follows just as a matter of logic from his finding that there is a 20 per cent chance of recovery?

MR SOLOMON: Yes.

GAGELER J: All right. Mr Solomon, are you saying that the ground.....arise, on the findings?

MR SOLOMON: I beg your pardon, your Honour, I missed ‑ ‑ ‑

GAGELER J: Are you saying that the ground, as framed in ground 1(a) of the.....appeal.....arise on the findings?

MR SOLOMON: Yes, we do. We say that for the second of the two reasons I identify, at least. In any event, we say that at least by reference to the second of the two findings I identify, but.....our point. I do not want to make the same points repetitively. Having remitted the matter, Justice McDonald has assisted us to know the following. We now know what opportunity we would have availed ourselves of, we now know the prospects in respect of that. We know the alternate prospects. We know that his Honour has concluded, as a matter of valuation, that 55 per cent of the account on the chose in action was lost.

We have had an evaluation of all of that. None of it is challenged by the applicant. The circumstances that presented in 2017 on the pure question must reasonable evaluate, we submit, now have been overwhelmed by the numerous findings made, which I have sought to identify to your Honours this morning.

For all of those reasons we ask your Honours to conclude, first of all, that the characterisation of the opportunity we propose is open, so the
question is not live, but if your Honours are minded to conclude that in the right vehicle characterisation here should be looked at, the collocation of all of these findings renders it inevitable that a court would conclude that this.....achieved a design, achieved its end, took the chose in action my clients possessed, and it caused it to..... In all of the circumstances, my clients ask your Honours.....on what, in its essence, would be a hollow question. If your Honours please.

BELL J: Thank you. Yes, Ms Harris.

MS HARRIS: If the Court pleases. Can I tackle directly the simple question that has been raised by each of your Honours which relates to whether there exists the special leave question identified by our learned friends. That special leave question does not arise in this proceeding and can I explain directly why? The special leave question, as identified, involves reduction of a chance to recover the judgment debt.

BELL J: Yes.

MS HARRIS: That is as framed in the application for special leave. There was no reduction in a chance to recover a judgment debt. There was destruction without any possibility of recovery of that chance to recover that judgment debt.

Can I treat your Honours to a short chronology in that regard? In 2008, Justice Osborne found that Jan Emil had breached the settlement agreement – the remedy for which was equitable compensation. He referred off the question to equitable compensation to Justice Kyrou. Justice Kyrou determined, in November 2009, that the amount of equitable compensation to be paid by Jan Emil was in the realm of €600,000. The debt created by that judgment was owed by Jan Emil and Jan Emil alone. He was the only defendant to that proceeding. He was the only judgment debtor.

In between those two events, the donation agreements were entered into. The donation agreements destroyed forever the prospect of recovery of that judgment debt and.....Justice McDonald..... You will see that from paragraph 56 of his 2018 judgment, which is at page 30 of the application book. Your Honours will also see – perhaps it is a good place to start in paragraph 55 on the same page, where his Honour records that:

After the Donation Agreement, the first defendant –

Jan Emil:

was no longer the owner of the Properties. As such, there was no prospect of –

this trustee in bankruptcy.....on the properties. His Honour then said, about point 3 of the page:

Accordingly, a future trustee in bankruptcy could not successfully direct the first defendant to take any steps to transfer the Properties to the trustee.

Then in paragraph 56:

In light of the matters set out above, I accept the plaintiffs’ submission that, after the Donation Agreement, there was no prospect of the trustee in bankruptcy getting in and realising the Properties.

At that point, there was no prospect of enforcing that judgment debt. So as at the date that Justice Kyrou delivered judgment, there was no prospect of enforcing that judgment debt.

The 20 per cent chance, to which reference is made, was a chance that arose several years later, and it is a chance which arose because of steps taken by the current respondents to bring enforcement proceedings – what had been referred to as enforcement proceedings in the Czech Republic. Your Honours will see that from paragraphs 57 and 58 of Justice McDonald’s judgment record that those proceedings were only taken in the case of Mr Solomon’s clients more than two years after Justice Kyrou had entered judgment against Jan Emil and, in the case of my client, three years after that judgment had been entered.

So what we have here is the complete destruction of one chance and then a.....chance.....and then in the case of my client, in.....which created a separate and different chance. The character of that separate and different chance is described by Justice McDonald in paragraph 65, which is on page 33. That separate and different chance, which they created for themselves, effectively by way of mitigation, was to bring different proceedings against a different set of respondents – not Jan Emil, not his trustee in bankruptcy, but against David and Paul, who were the parties to the donation agreement.

Your Honours see that those donation proceedings are brought under section 42a of the Czech Civil Code. Justice McDonald has described the essential elements of the establishment of a cause of action under the Czech Civil Code. There was a legal act taken by a debtor – in this case, Jan Emil. It was done for the “purpose of curtailing his creditors” and “the other party to the legal act” – the respondents in this donation proceeding, David and Paul – must have known of that purpose when they received the properties.

Now, in effect, what this amounts to is a statutory Barnes v Addy claim, so that it allows someone in the position of my client and Mr Solomon’s client to raise a separate cause of action against different people in hope of recovering an amount which might satisfy the loss that they have suffered because of the legal step which was taken by the judgment debtor.

So, harking back to the special leave question, which is identified, there.....in the chance to recover the judgment, the only person.....recovering of the judgment debt was possible was Jan Emil.....that is now.....

BELL J: Ms Harris, turning to the.....the loss of the chance of recovery of the judgment debt is.....it comes to recover the judgment debt, the subject of the assessment by Justice Kyrou. Is that the case? Ms Harris, we seem to have some ‑ ‑ ‑

MS HARRIS: I am sorry, your Honour.

BELL J: So, that chance you say was destroyed by the donation agreement because the judgment debtor, Jan Emil - his substantial property holdings were in Czechoslovakia and were the subject of the donation agreement. I have some difficulty seeing, in light of the proceedings, albeit commenced by your clients after the donation agreement, but proceedings brought to enforce the judgment debt in Czechoslovakia and to set aside the donation agreement, why it can be said that the chance of recovery of the judgment debt by that mechanism has been obliterated.

MS HARRIS: So, your Honour, the key lies in the words “enforcement of the judgment debt”. The proceedings in the Czech Republic are not proceedings, notwithstanding some loose language in both the submissions and what the learned trial judge said. Your Honour sees from paragraph 65 that what the Code provides for is not the enforcement of a judgment debt, it provides for a separate and different cause of action which might lead to recovery of an amount out of which our clients can ‑ ‑ ‑

BELL J: Is that in the second Prague proceedings that you are speaking of, as distinct from the first?

MS HARRIS: Yes, your Honour.

BELL J: The first set of proceedings is a proceeding for recognition and enforcement of Justice Kyrou’s judgment, is it not?

MS HARRIS: So, your Honour, my client does not bring those proceedings, proceedings for the enforcement of the judgment in the Czech Republic.

BELL J: I am sorry.

MS HARRIS: But, your Honour also sees from paragraph 64 of Justice McDonald’s judgment, which is immediately above, that those enforcement proceedings cannot go forward against the estate because no one has stepped into the shoes of Jan Emil, and so, as his Honour has found, even with respect to Mr Solomon’s clients, it is likely that that proceeding will be terminated. In other words, there is zero prospect of actually enforcing the judgment debt, whether in Australia as against the trustee in bankruptcy, or in the Czech Republic through these enforcement proceedings. The only chance which remains is a separate and different chance through separate and different proceedings against separate and different people ‑ ‑

BELL J: I see, yes. I understand.

MS HARRIS: So that is why there is no reduction in a chance, your Honour, and that is why we say the special leave question which has been identified simply does not arise. This is not the right vehicle in which to address that particular question. Your Honours, I am not – even if, and we say for the reasons that I have tried to explain, even if one could characterise this reduction, which we do not, the question which is posed for this Court is whether damage has been suffered which is sufficient to affect a cause of action.

We say that even if what we are looking at is reduction of a chance, damage was suffered when that chance was reduced from 75 per cent to 20 per cent. Any ordinary man in the street will tell you why that is so. If he holds a ticket which has a 75 per cent chance of winning the lottery and you take it off him and you give him a ticket instead that only has a 20 per cent chance of winning the lottery, he will tell you that he has suffered damage. This is ‑ ‑ ‑

BELL J: But what happens if he wins, Ms Harris?

MS HARRIS: Well, it does not matter for the purposes of assessing whether he has suffered damage.....the moment they take the 75 per cent chance.....and that is because ‑ ‑ ‑

GAGELER J: After the lottery has been drawn, it might be different, Ms Harris, but before the lottery is drawn it is a little hard to say, is it not?

MS HARRIS: But, your Honour, this is consonant with what has fallen from this Court in cases dealing with opportunity loss. Damage refers to some difference in the plaintiff. The man who holds the 75 per cent ticket is in a different position to the man who holds the 25 per cent ticket. So, the analogy that our learned friends draw to the personal injury cases is a poor one we say, with respect, because in the personal injury cases you stumble for reasons which are unrelated to the characterisation of the opportunity.

In the personal injury cases, like Tabet v Gett, the problem which the plaintiff faces is that they were already sick. So, the act of the defendant has not caused the harm to the plaintiff. It has simply meant that there might be a better chance of recovery and the realisation of that chance or otherwise is not recognised as damage for the policy reasons, amongst others, which are identified in that case.

But this is a commercial opportunity and so there is an immediate analogy with Sellars v Adelaide Petroleum. In Sellars v Adelaide Petroleum there was a reduction in the value of the commercial opportunity because the counterfactual.....contract with Pagini, the actuality which was caused by the defendant’s interposed product was a less valuable contract with the same entity. So, in that case the defendant’s conduct caused a diminution in the value of that commercial opportunity – that commercial opportunity to contract with a single entity, Pagini.

So, in the realm of commerce, the Court, with respect, looks at damage in a slightly different way and when you take away, as here, a valuable commercial opportunity in the realm of.....per cent chance to recover your €600,000 and you substitute a different commercial opportunity.....it is clear that damage has occurred, we would say. So, on any view there does not arise a special leave question which is right for determination in this Court.

BELL J: Thank you, Ms Harris.

MS HARRIS: Before I conclude, your Honour, can I.....we say, with respect to the other aspect of this, that the expenses are in our written submissions but it is important to bear in mind that again the question is perfection of a cause of action and on any view the moment that one of these respondents had to put his or her hand in their pocket and pay money in order to chase money they were owed overseas, the cause of action was perfected. If your Honours please.

BELL J: But events have moved on somewhat, have they not, and as I understand it, Justice McDonald did not find any sum in relation to expenses occasioned in Australia. Is that right?

MS HARRIS: Your Honour, in respect of expenses occasioned in Australia, that is true. But the point that we seek to make is a different one. Damage is the gist of the action. Damage occurred the moment someone had to spend some money.

BELL J: But now we have had an assessment and it has not been found that damage of that character did occur.

MS HARRIS: No, your Honour, it has been found that expenses were incurred but not expenses within Australia. This case.....still got to set out is not a case on all fours with Lonrho because the proceedings that we have had to bring elsewhere are not on all fours with the proceedings here. The parties are not the same.

BELL J: Thank you, Ms Harris. We do not need to hear from you, Mr Walker, save in relation to some procedural considerations. At the moment, as I understand it, application M8/2019 is the application in relation to Justice McDonald’s judgment assessing the sum, following the judgment of the Court of Appeal pronounced on 27 June 2017. In relation to the latter judgment, proceeding M9/2019 is the application that concerns the proceedings brought by the second to fifth respondents in M8 and then proceedings in M10/2019 relate to the proceedings brought by the first respondent.

MR WALKER: Yes, your Honour.

BELL J: At the end of the day we are looking at precisely the same two issues in each application.

MR WALKER: We are.

BELL J: Is it the case, Mr Walker, that there is now an application pending before the Court of Appeal in relation to Justice McDonald’s judgment?

MR WALKER: I am so sorry, your Honour, I need to seek instructions. No is the answer.

GAGELER J: There has been a judgment. Has there not been a judgment, Mr Walker?

MR WALKER: Your Honour has ‑ ‑ ‑

GAGELER J: Has there been an appeal? There has not?

MR WALKER: Your Honour has the advantage of me. I am certainly not instructed that there has been. Now I am having my instructions provided. There has been the dismissal of an appeal from Justice McDonald’s judgment.

BELL J: Yes.

GAGELER J: Yes. It is all a bit of a mess, Mr Walker. We had better sort it out somehow.

MR WALKER: Yes. It is, to put it exactly as your Honour says, a mess which I am sorry, I apologise, there needs to be ‑ ‑ ‑

BELL J: What we had in mind, perhaps, Mr Walker, was if we were to grant special leave in the three applications that are before us today, and perhaps stand the matter over for directions before Justice Gageler, it might be possible to then consolidate the proceedings and it may be attention needs to be given to the orders made by the Court of Appeal in the most recent decision.

MR WALKER: Yes, and I think the attention of this Court to those orders would probably need a new application, for which I am sorry.

BELL J: Indeed.

GAGELER J: This could probably be done quite readily by consent.

MR WALKER: Yes.

GAGELER J: The grounds of that application being the grounds upon which we are now granting special leave to appeal in the other matters.

MR WALKER: That is correct, your Honour.

GAGELER J: So perhaps it could all be done quite easily in a set of consent directions that would have all of the matters consolidated into one appeal and then the timetable for submissions following in the usual way.

MR WALKER: Yes, your Honour, it being our full wish we would have the carriage of that curative approach.

BELL J: Yes, very well, and the likely estimate?

MR SOLOMON: Your Honours, could I be heard on one issue, if I may?

BELL J: Indeed, Mr Solomon.

MR SOLOMON: Thank you, your Honour. Your Honour, in the - if we treat M8 as the essence of the matter for which leave has been granted - Justice McDonald ordered - my clients appealed and lost to the Court of Appeal, so that can be put to one side - if the orders of Justice McDonald be treated as the orders that will be under evaluation, the special leave application sought leave on two questions, an opportunity cost question, which your Honours are obviously persuaded on, and an expenses question, in fact at paragraph 101 of Justice McDonald’s judgment, the parties, that is, my client and Judy Talacko, were agreed on an amount for expenses.

It might be that this can be sorted out at directions, but we would resist the second question being a part of the application for special leave, and we would not want to leave today with that unclear. If it is only the first question which is the subject of the grant it is straightforward to tidy up. If my learned friend’s friend wins on an appeal, there will be a reduction in the judgment and there will not if he does not.

Your Honours may not want to attend to this today, but we would ask that focusing on M8, the Justice McDonald proceeding, the leave be confined to the first of the two questions in the circumstances and the essence of the Full Court appeal will then involve the question of loss of a chance. Thank you for the opportunity to address your Honours.

BELL J: Yes. Mr Walker, what do you say to that?

MR WALKER: Your Honour, your Honours, nothing that we wish to argue would involve reneging on what is recorded in paragraph 101, but the second ground is both appropriate and, with respect, necessary for a proper canvassing of the issues in the first ground. Because of the theory of the case advanced against us that by reason of any head of what I will call costs and expenses – and that is of course not confined only to that which is recorded as being agreed in 101 – if there are any damages found under that head then the cause of action crystallises, to use the jargon, and then, again to use the jargon, the assessment of damages is at large. Now, your Honours know that we submit that whatever else may be dubious about that logic, the last step does not ‑ ‑ ‑

BELL J: I think we have the point, Mr Walker, and, yes, the grant will extend to both grounds.

MR WALKER: If it please the Court. Your answer to your Honour’s question, by appropriate discipline and agreement the case can be finished in a day.

BELL J: Thank you, Mr Walker. I take it, Ms Harris and Mr Solomon, you are agreed?

MR SOLOMON: Yes, your Honours.

MS HARRIS: Yes.

GAGELER J: Would it be suitable to the parties to set the matter down for directions before me at 9.30 next Friday?

MR WALKER: Yes, your Honour.

MR SOLOMON: Thank you, your Honour.

GAGELER J: Perhaps if there are some consent orders that could be sent up before, we could avoid the need to have another hearing.

MR WALKER: Yes, we will attend to that, your Honour.

GAGELER J: Thank you.

BELL J: Very well. There will be grants of special leave on each of the two grounds in each of the applications.

Adjourn the Court.

AT 1.19 PM THE MATTER WAS CONCLUDED