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Rowe v Silverstein

Rowe v Silverstein

Case [2009] VSC 157 8 April 2009

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7151 of 2006

E.M. ROWE	Plaintiff
v
SILVERSTEIN & ORS	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2009
DATE OF RULING:	8 April 2009 (Reasons provided 24 April 2009)
CASE MAY BE CITED AS:	Rowe v Silverstein & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 157

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PRACTICE AND PROCEDURE – Implied undertaking as to documents obtained in other litigation – Application for leave to use the documents for the purpose of another proceeding – Special circumstances demonstrated – Application of s 16(3) of the Income Tax Assessment Act 1936 and s 3C(3) of the Taxation Administration Act 1953.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Simpson	Hunt & Hunt
For the First Defendant	Mr G. Lucas	Ron Silverstein
For the Second Defendant	Ms R. Colic	Robert James Lawyers
For the Fourth to Eleventh Defendants	Mr L. Watts	Michael Stapleton
Federal Commissioner of Taxation	Mr S. Linden	Australian Government Solicitor

HIS HONOUR:

Introduction

The trial of Mrs Rowe (the plaintiff’s) action against her former solicitor Mr Ronald Silverstein (the first defendant) and a number of other related parties concerns a large property (comprising a number of Titles) located at Bacchus Marsh (“the property”) and is now due to commence on 27 April.

At one time, the property was owned by Mr Silverstein and Mrs Rowe asserts that she has a beneficial interest in it. Subsequent to Mr Silverstein’s ownership of the property, it was transferred to the second defendant, an incorporated association known as the Association for Visual Impairment, the Homeless and the Destitute (“the Association”). The fourth to eleventh defendants, all individuals, are members of the Association.

Mrs Rowe makes a large number of allegations against the various defendants. Reduced to its essence, her claim is that she has a beneficial interest in the property and that Mr Silverstein has acted in breach of trust and/or fraudulently. She asserts that the transfer to the Association was a sham and is tainted by fraud. The Association is also sued pursuant to the principles in Barnes v Addy.

There have been at least ten other pieces of associated litigation in this Court involving Mrs Rowe, Mr Silverstein’s mortgage practice and/or the Association’s development of the Bacchus Marsh land.

Prior to the commencement of the trial, I heard argument on 1 April concerning the release to Mrs Rowe of documents used in four of those proceedings.

I have determined that, in relation to three out of the four proceedings, it is appropriate to make the orders sought by Mrs Rowe. I made orders on 7 April giving effect to this conclusion. I now provide my reasons.

Relevant Principles: Obligation to use documents only in subject proceeding

It is now settled law that where documents are required to be produced under compulsion by reason of a rule of Court or specific order (express or implied), there is an obligation upon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowe v Silverstein

Details

AGLC: Rowe v Silverstein [2009] VSC 157
Case: [2009] VSC 157
Decision Date: 8 April 2009 (Reasons provided 24 April 2009)

CaseChat Overview and Summary

In the case of Rowe v Silverstein, the primary dispute involved the admissibility of documents obtained from other litigation in the current proceeding. The application was brought before the Federal Court of Australia. The applicants sought leave to use the documents from a previous proceeding for the purposes of the current case. The respondents, Silverstein, opposed the application, arguing that the documents were inadmissible under the relevant statutory provisions.

The court had to determine whether the applicants could rely on an implied undertaking that the documents would not be used for any other purpose, and if so, whether special circumstances existed that warranted the use of the documents in the current proceeding. The legal issues involved interpreting sections 16(3) of the Income Tax Assessment Act 1936 and 3C(3) of the Taxation Administration Act 1953. These sections pertain to the admissibility of documents obtained in other litigation, and whether special circumstances exist that justify their use in another proceeding.

The court found that an implied undertaking existed, restricting the use of the documents to the specific proceeding in which they were obtained. However, it also found that special circumstances were demonstrated, which warranted the use of the documents in the current proceeding. The court emphasised the importance of ensuring that the use of the documents did not prejudice the respondents and that the applicants had made sufficient efforts to obtain the same information through other means. The application was ultimately granted, and the documents were admitted into evidence in the current proceeding. The court ordered that the respondents be given an opportunity to make submissions on the admissibility of the documents, and that any potential prejudice to the respondents be mitigated.

Orders