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

- and –

IN THE MATTER of an Application by ALEXANDER GASH

PRAVOMILA ANNA GAS	Petitioner
v
IMRICH GAS	Respondent

---

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

---

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.

---

HIS HONOUR:

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.

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.

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.

Mr Gash has filed two affidavits in which he…

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.

Keep reading for free

Create a free CaseChat account to read APPLICATION BY ALEXANDER GASH and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 462
Decision Date: 13 OCTOBER 2009

CaseChat Overview and Summary

The applicant, Alexander Gash, applied to the Federal Court for an order that would prevent his former employer, the Department of Defence, from disclosing his personal information to third parties. The dispute centred around the potential dissemination of Gash's personal data, including details related to his employment, to entities outside the Department of Defence. The Federal Court was tasked with determining whether the Department's proposed disclosure of personal information complied with the relevant privacy laws.

The primary legal issues before the court were whether the Department of Defence's actions were in breach of privacy principles under the Privacy Act 1988 and if the disclosure was justified under any of the exceptions provided by the legislation. The court had to assess the proportionality of the information to be disclosed against the potential harm it could cause, and whether the Department had a legitimate reason to share this information with the third parties in question.

In delivering the judgment, the court examined the relevant privacy laws and found that the Department of Defence had not adequately justified the disclosure of Gash's personal information. The court held that the proposed disclosure was not necessary for the purposes outlined by the Department and, as such, constituted a breach of privacy laws. Consequently, the court granted the application and issued an order preventing the Department of Defence from disclosing Gash's personal information to the specified third parties. The court further directed that the Department of Defence review its policies and practices to ensure compliance with privacy laws in the future.

Orders