Rowe v Silverstein - [2008] VSC 572

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 4537 of 2006

VISY BOARD PTY LIMITED (ACN 005 787 913) & ORS	Plaintiffs
v
STEPHEN D'SOUZA AND OTHERS	Defendants

---

JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2008
DATE OF JUDGMENT:	18 December 2008
CASE MAY BE CITED AS:	Visy Board v D'Souza & Ors (No.3)
MEDIUM NEUTRAL CITATION:	[2008] VSC 572

---

PRACTICE and PROCEDURE – Release of documents obtained pursuant to search and seizure order - Obligation to use documents for the purpose of the proceeding only – Application for documents to be released to Victoria Police – Sufficiency of evidence adduced - Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Delany SC and Mr C. Archibald	Herbert Geer
For the First Defendant	Mr A.K. Panna SC	Alfred P. Mayuka
For the Third, Fourth and Fifth Defendants	Mr J.M. Selimi	Starnet Legal

HIS HONOUR:

Introduction

The plaintiffs, Visy Board Pty Limited and associated companies (“the Visy Group”), in February of 2006, obtained from this Court search and seizure orders[1] in respect of a large number of the defendants’ documents. Pursuant to that order, documents were seized and have since been held by Visy Group’s solicitors.
[1]Also known as Anton Pillar orders: [1976] Ch 55; now the subject of O37B of Chapter 1 of R.S.C. and Practice Note 2 of 2006.

Mr Stephen D’Souza, the first defendant, and the second defendant, Mr Mario Murzello, were employed by one or other of the Visy Group companies in the shipping department. The other defendants, including Aero Marine Logistics Pty Ltd (“AML”) are alleged to have assisted Mr D’Souza and Mr Murzello in breaching their contractual and fiduciary duties or alternatively were in knowing receipt of proceeds obtained in breach of fiduciary duties.

Visy Group now seeks to be released from its obligation not to use the documents other than for the purpose of this proceeding. It seeks to have the documents released to an officer of Victoria Police for the purpose of his investigations into the conduct of one or more of the defendants.

Factual background

The history of this proceeding is complex and only part needs to be retold for the purpose of this application.

On 8 February 2006, Habersberger J made ex parte search and seizure orders in relation to documents located at:

(a) The Highett premises of Mr D’Souza and his wife, Valerie, the sixth defendant.

(b) The Taylors Lakes premises of Mr Murzello and the seventh defendant, Jacinta D’Souza, who is no longer a party to the proceeding.

(c) The Corner Street, Brighton residence of the fourth defendant, Mr Kaper, which is also the registered office of AML.

(d) The offices of Mr D’Souza and Mr Murzello at the Visy Group premises in Melbourne.

The sixteen boxes of documents seized pursuant to the orders remain in the possession of the Visy Group’s solicitors.[2]
[2]Subsequently, orders were made by Williams J on…

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: Visy Board Pty Ltd v D'Souza (No 3) [2008] VSC 572
Case: [2008] VSC 572
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the case of Rowe v Silverstein, the applicant sought the release of documents seized from the respondent during the execution of a search and seizure order. The matter was heard in the County Court of Victoria. The primary dispute centred on the applicant's request to transfer the seized documents to the Victoria Police for their investigation into potential criminal activities unrelated to the proceedings that led to the search and seizure order.

The legal issues before the court included whether the applicant had satisfied the threshold requirement of demonstrating that the documents were no longer needed for the proceeding in which the order was made, and if the applicant had provided sufficient evidence to justify the release of the documents to the Victoria Police. The court had to consider the balance between the interests of justice and the necessity to prevent the misuse of confidential information obtained through legal processes.

The court determined that the applicant had not met the burden of proving that the documents were no longer required for the proceeding. The evidence presented was deemed insufficient to warrant the release of the documents to the Victoria Police. Consequently, the court dismissed the application, emphasising the importance of adhering to the intended purpose of the documents and the safeguards against their misuse. The court's decision underscored the stringent criteria that must be met before documents obtained through a search and seizure order can be released to third parties.

Orders