Rowell, Philip, in the matter of an application by

[2002] VSC 71

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5791 of 2001

IN THE MATTER OF AN APPLICATION BY PHILIP ROWELL AS TRUSTEE OF THE DOW CORNING AUSTRALIA SETTLEMENT TRUST AND AS TRUSTEE OF THE EXPEDITED AND CAPITALIZED (CERTAIN AUSTRALIAN CLAIMANTS, DOW CORNING BREAST IMPLANTS) SETTLEMENT TRUST UNDER ORDER 54.02 OF THE GENERAL RULES OF PROCEDURE IN CIVIL PROCEEDINGS ACT 1996 Applicant

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JUDGE:	BEACH,  J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 MARCH 2002
DATE OF JUDGMENT:	26 MARCH 2002
CASE MAY BE CITED AS:	IN RE AN APPLICATION BY PHILIP ROWELL
MEDIUM NEUTRAL CITATION:	[2002] VSC 71

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CATCHWORDS:      Trustee of Trust – Directions concerning implementation of Trust.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. Philip Rowell	Ebsworth & Ebsworth
For the Claimants Generally	Mr. Peter Gordon	Slater & Gordon
For the Non-Responding Claimants	Mr. B. McTaggart	Ebsworth & Ebsworth

HIS HONOUR:

1. This is an application by Philip Rowell as Trustee of the Dow Corning Australia Settlement Trust and as Trustee of the Expedited and Capitalized (Certain Australian Claimants, Dow Corning Breast Implants) Settlement Trust pursuant to Order 54.02 of the General Rules of Procedure in Civil Proceedings 1996 for directions concerning the steps which should now be taken in respect of 32 Non-Responding Claimants, 31 of whom are unrepresented and one who is represented. On 19 March 2002 I ordered that each of the Non-Responding Claimants should now be deemed to have authorised the Trustee to implement the Capitalized Trust and to have participated in the implementation of the Capitalized Trust. I now state my reasons for doing so.

1. At the time of the Trustee's appointment by order of this Court on 21 May 2001 there were 65 Non-Responding Claimants.

1. Pursuant to orders of the Court made that day the Trustee was directed to correspond forthwith with the Non-Responding Claimants in the form of the letter and election form exhibited to the order.

1. It was further ordered that the Non-Responding Claimants were to complete the election form exhibited to the order and to return that form to the Trustee by 15 June 2001.

1. Finally the order directed that after 15 June 2001 the Trustee authorise the Claims Administrator appointed to administer the scheme, to undertake all reasonable enquiries to locate the whereabouts of the Non-Responding Claimants.

1. By 20 August 2001 those steps had been taken.  As at that date the number of Non-Responding Claimants had been reduced to 49.  That figure is to be contrasted with the 3132 claimants who had provided authorities or election forms to the Trustee authorising him to implement the Capitalized Trust.

1. On 23 August 2001 I made the following orders in the proceeding.

"3.In relation to the Non-Responding Claimants referred to in exhibit 'PJR 15' to the Trustee's affidavit the Trustee be directed to:

(i)correspond with the Non-Responding Claimants who are legally represented in the form of the draft letter set out in paragraph 14 of the Trustee's affidavit enclosing with each of the letters an election form in the form exhibited to the order of this Honourable Court made 21 May 2001;  and

(ii)      to place an advertisement:

(i)in the highest circulation daily newspaper in New South Wales, Western Australia, South Australia, Queensland, Victoria and Tasmania;

(ii)      in the weekend Australian newspaper,

requiring each of the Non-Responding Claimants who are not legally represented to contact Mr. Philip J. Rowell, Solicitor at Ebsworth & Ebsworth, Solicitors, Level 31, 525 Collins Street, Melbourne, Victoria 3000 or on e-mail [email protected] within two weeks of the date upon which the advertisement was lodged in such newspapers."

1. The Trustee duly complied with the direction contained in paragraph 3(i).  On 23 August 2001 he arranged for appropriate newspaper advertisements to be published on Saturday 1 September 2001 in the seven newspapers having the highest circulation throughout the States and Territories of Australia including the weekend Australian Newspaper.

1. By 9 November 2001 the number of Non-Responding Claimants had been reduced to 39 and by 14 March 2002 to 32.

1. In my opinion it would be true to say that the Trustee and the Claims Administrator have taken every practical step they can in an endeavour to elicit a response from the 32 Non-Responding Claimants but without success.  I consider that they should not be required now to do anything further concerning such claimants.

1. In the circumstances, each of the Non-Responding Claimants should now be deemed to have authorised the Trustee to implement the Capitalized Trust and to have participated in the implementation of the Capitalized Trust.

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