APPLICATION BY ALEXANDER GASH

[2009] VSC 462

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

IN ITS DIVORCE AND MATRIMONIAL CAUSES JURISDICTION

No. 1497 of 1958

IN THE MATTER of an Application Pursuant to Rule 28.05(2) of the Supreme Court
(General Civil Procedure) Rules 2005

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IN THE MATTER of an Application by ALEXANDER GASH

PRAVOMILA ANNA GAS	Petitioner
v
IMRICH GAS	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	13 OCTOBER 2009
CASE MAY BE CITED AS:	APPLICATION BY ALEXANDER GASH
MEDIUM NEUTRAL CITATION:	[2009] VSC 462

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PRACTICE AND PROCEDURE – Application for leave to inspect a divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (Civil Procedure) Rules 2005 – Applicable principles – Consistency with the rules of Federal courts – Confidentiality – Passage of time – Valid interest in inspecting file.

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HIS HONOUR:

1. This is an application by Alexander Gash for leave to inspect the file in divorce proceeding No. 1497 of 1958 in the Supreme Court at Melbourne.  Rule 28.05 provides that any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding unless the document is one which in the opinion of the Prothonotary ought to remain confidential to the parties.  Such a document may only be inspected with leave of the Court.

1. The practice of the Prothonotary is to treat as material which ought to remain confidential all documents on a divorce file.  Of course, if the information is already publicly available, different considerations apply.

1. The present practice was considered by Whelan J in the matter of proceeding No. 291 of 1944[1].  After comparing the position taken by the Prothonotary with that adopted by other courts, and having expressed his opinion that the procedure of this Court should be cognisant of the confidential nature of certain information on divorce files, and should be consistent with the approach taken in Federal courts, his Honour said that, in his opinion, the Prothonotary is correct in adopting the general practice of treating documents on divorce files as confidential.  Any other course would produce a marked disconformity between this Court and current law and practice in courts having jurisdiction in such matters.  Accordingly, where a non-party applicant wishes to inspect such documents, an application should be made for leave to do so pursuant to rule 28.05(20(b).  His Honour expressed the view that an affidavit should ordinarily be filed identifying the applicant and his or her association (if any) with the parties, the purpose for which access is sought, how the applicant perceives that access will further that purpose, the use the applicant intends to make of the information if access is provided, and who, if anyone, may have an interest in the file or in the application.  If there is any such person, his Honour indicated that the affidavit should specify whether he or she has been notified of the application.

   [1][2005] VSC 50.

1. Mr Gash has filed two affidavits in which he identifies himself as the son of the parties to the divorce proceedings.  He deposes that his father, Imrich Gas, recently died and his mother, Pravomila Gas, suffers from memory loss and has only a poor recollection of the divorce.  The file discloses that he has no living siblings of the marriage.  He further deposes that neither party objected in the past to him obtaining a copy of the divorce certificate and examining the divorce file, as well as obtaining child custody information, but he decided not to proceed until his father had passed away and “now no party can be hurt.”

1. A Decree Nisi was granted by Barry J on 6 June 1961.  His Honour further ordered by consent that Mr Gas have custody of the applicant.  The Decree Nisi of dissolution of the marriage became absolute on 7 September 1961. 

1. All this occurred 48 years ago.  Cabinet documents are released after 30 years.  It seems to me that so much time has elapsed since the divorce that the need to protect the privacy of those then intimately involved is substantially diminished.  In this context I note the matters deposed to by Mr Gash to which I have already adverted. 

1. In my opinion, the general policy adopted by the Prothonotary should be adapted where the passage of time and any relevant circumstances so indicate.  I do not know whether other courts adopt a similar position, but it seems to me that the direct descendents of divorced couples should after 48 years (the period that has elapsed in this case) be entitled to know something about the circumstances of that divorce.  Of course, the information may not be pleasing to them, save for such satisfaction as may come from having the relevant knowledge where before there was mere speculation.  But it is for them to decide whether they wish to take the risk that what they discover may disappoint.

1. I accordingly order pursuant to r.28.05(2)(b) that the applicant have leave to inspect and obtain copies of documents on the file of proceeding No.1497 of 1958 in the Supreme Court at Melbourne. 

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