Rowe v Silverstein

Case [2009] VSC 157


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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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

  1. 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…

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Rowe v Silverstein [2009] VSC 157
Case
[2009] VSC 157
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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