IMO Proceeding No. 1351 of 1953

[2016] VSC 367

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 1953 1315

IN THE MATTER of Proceeding No. 1315 of 1953

IN THE MATTER of an Application pursuant to r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF RULING:	27 June 2016
CASE MAY BE CITED AS:	IMO Proceeding No. 1351 of 1953
MEDIUM NEUTRAL CITATION:	[2016] VSC 367

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PRACTICE AND PROCEDURE – Application for leave to inspect a divorce file pursuant to r 28.04(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance (the application being referred on the papers by the Prothonotary)

HIS HONOUR:

1. The applicant, Ms Y, has asked to inspect and copy documents from an application for divorce (Proceeding No. 1315 of 1953) brought by her mother in 1953.

1. The application was denied by the Deputy Prothonotary who exercised the discretion conferred by Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015 to keep the documents confidential.  Relevantly r 28.05 reads as follows:

Inspection of documents

(1)When the Office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.

(2)       (a)       …

(b)a person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought  to remain confidential to the parties.

1. In the event that the Prothonotary forms an opinion that documents should remain confidential, the Court may override that opinion.[1]

   [1]XYZ 1 v State of Victoria [2001] VSC 233.

1. Prior to the introduction of the Family Law Act 1975 (Cth), this Court had jurisdiction in divorce and matrimonial cases. The court files for divorce proceedings issued in this Court are held, with some exceptions, by the Prothonotary.

1. There have been a series of decisions of judges in this Court relating to the disclosure of material from old divorce files pursuant to the above rule. The Court’s ‘open approach’ to disclosure of material on civil files has been cited alongside the ‘more restrictive approach, with a focus on confidentiality’ that has governed inspection of divorce files in the  Federal Jurisdiction.[2]

   [2]See for example, In the Matter of Proceeding No. 1496 of 1956 [2010] VSC 192, [6] (citing Whelan J In the Matter of Proceeding No. 291 of 1944 [2006] VSC 50).

1. By reference to a number of recent decisions of this Court, J Forrest J summarised the following principles In the Matter of Proceeding No 3159 of 1970:[3]

   [3][2015] VSC 61 [8] (citations omitted).

In determining whether to grant the application, the court must consider:

(i)        whether the interest of the applicant in accessing the file and the purpose for which the applicant intends to use information in the file is proper or appropriate; and

(ii)       the confidentiality of any information contained in the file and the effluxion of time as it relates to the consequence of any disclosure upon the privacy of parties and relevant non-parties, and the extent to which that privacy may be compromised.

Overall, the court must consider the utility of granting the access sought in all the prevailing circumstances.

1. I have read the divorce file in its entirety.  Ms Y’s stated interest in it is essentially to trace her family history.  The general rule is that the applicant has the right to inspect the file and obtain copy filed documents upon payment of a fee.[4]

   [4]Rule 28.05(1) of the Supreme Court (General Civil Procedure) Rules 2015.

1. Lots of families have secrets.  I do not know whether the contents of the petitioner’s affidavit will be news to the applicant (or her family), but supposing that it is, I consider there are sound reasons for allowing access to view and copy the file.

·The 1953 petitioner, Betty M, is dead.

·The applicant, it appears, does not know the whereabouts or fate of the 1953 respondent Michael M.  If he were alive he would be 96 years old.  .

·Whilst what is disclosed in the file may have scandalised some a generation ago, skins are thicker in these more worldly times.

·The general rule is that an applicant has a right to inspect and copy the file.