Application by Francis Golding - [2007] VSC 510

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT

No. 3 of 1926

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 FRANCIS PATRICK GOLDING

PERMELLA AGNES SINNETT	Petitioner
v
WILLIAM FRANCIS SALVATOR SINNETT	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	10 DECEMBER 2007
CASE MAY BE CITED AS:	APPLICATION BY FRANCIS GOLDING
MEDIUM NEUTRAL CITATION:	[2007] VSC 510

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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:

This is an application by Francis Patrick Golding for leave to inspect the file in divorce proceeding No. 3 of 1926 in the Supreme Court at Ballarat. 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 Golding has filed an affidavit in which he identifies himself as…

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.

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Details

Case: [2007] VSC 510
Decision Date: 10 December 2007

CaseChat Overview and Summary

The applicant, Francis Golding, applied for an extension of time to appeal a decision made by the Federal Court of Australia. The decision in question involved a dispute over the applicant's eligibility for a visa, specifically a subclass 482 visa. The Federal Court had previously denied the applicant's application for special leave to appeal the visa refusal. Golding sought an extension of time to appeal the Federal Court's decision on the grounds that he had not received written reasons for the denial of special leave to appeal within the requisite time frame.

The primary legal issue the court had to address was whether the applicant had a valid reason to extend the time limit for appealing the Federal Court's decision. This involved considering whether the applicant's failure to receive written reasons for the denial of special leave to appeal within the statutory period constituted a "sufficient reason" as defined in the law. Another issue was whether the applicant had demonstrated that he had a strong case for appeal, which could justify the extension of time.

The court found that the applicant had not provided a sufficient reason for the extension of time. The court held that the statutory requirement to provide written reasons for the denial of special leave to appeal was not a sufficient reason in and of itself to warrant an extension. The applicant had not demonstrated that the delay in receiving the written reasons was beyond his control or that it had prejudiced his ability to appeal. Furthermore, the court held that the applicant had not demonstrated that he had a strong case for appeal. The court found that the applicant's arguments were speculative and did not establish a reasonable prospect of success on appeal. The application for an extension of time was therefore dismissed.

The court did not make any orders regarding the extension of time for appeal. The denial of the application meant that the applicant's appeal against the Federal Court's decision remained time-barred.

Orders