In the Matter of Proceeding No 1145 of 1942

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1145 of 1942

IN THE MATTER of Proceeding No 1145 of 1942

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 January 2009
CASE MAY BE CITED AS:	In the Matter of Proceeding No 1145 of 1942
MEDIUM NEUTRAL CITATION:	[2009] VSC 1

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PRACTICE AND PROCEDURE – Application by non-party to inspect divorce file – Divorce granted 65 years ago – Both parties deceased – Applicant 73 years of age – Only child of the marriage – No other persons likely to be affected adversely – Requirements for granting access satisfied – Application granted – Supreme Court (General Civil Procedure) Rules 2005 r 28.05(2)(b).

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APPEARANCES:	Counsel	Solicitors
No appearance

HIS HONOUR:

Valerie Evelyn Day applies pursuant to r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 for leave to inspect the file relating to the divorce in 1943 of her parents, Norman James Roth and Andrina May Roth. She makes the application through the agency of her daughter, Suzanne Day.

The applicant was born in 1935. She was thus 7 years old when her parents divorced. She is now 73 years of age. Her mother has now been dead for over 30 years and her father for over 20 years. She is the only child of the marriage.

Applying the principles which this Court has recently adopted in relation to applications of the present kind[1], I am satisfied on the material filed that this is an appropriate case to grant leave. Not only is the applicant the only child of the parties, she is mentioned (as a young child) in documents contained in the file. So she has a direct association with the proceeding. She also has a valid interest in inspecting the file. Doing so may assist her to gain an understanding of matters which presumably had a significant impact on her life. In the circumstances of this case, it is unlikely that allowing her to inspect the file, or even to copy all or any part of it, would compromise the privacy interests of any living individuals.
[1]See In the Matter of Proceeding No 291 of 1944 [2006] VSC 50; Re Proceeding No 127/1920 [2007] VSC 302; Re Proceeding No 8 of 1938 [2008] VSC 220.

Accordingly I order pursuant to r 28.05(2)(b) of the Rules that the applicant, Valerie Evelyn Day, have leave to inspect and obtain copies of documents on the file of proceeding no 1145 of 1942.

CaseChat Overview and Summary

The case before the court involved an application by a non-party, who was the only child of the parties to a divorce proceeding, to inspect the file of the divorce case which was finalised 65 years ago. Both parties to the divorce had since passed away, and the applicant, at the age of 73, sought to inspect the file. The matter was heard in the Supreme Court of Queensland. The primary issue for the court to determine was whether the application complied with the requirements for granting access to a file under the Supreme Court (General Civil Procedure) Rules 2005, particularly rule 28.05(2)(b).

In assessing the application, the court considered the nature of the proceedings, the age of the file, and the status of the parties involved. The applicant argued that they had a legitimate interest in inspecting the file as they were the only child of the divorced couple and wished to understand more about their parents' past. The court found that the requirements for granting access were satisfied as there were no other living persons likely to be adversely affected by the disclosure of the file, and the applicant's interest in inspecting the file was valid and significant. Given the age of the case and the status of the parties, the court was satisfied that the inspection would not cause any undue prejudice or hardship.

Following its analysis, the court granted the application, allowing the applicant to inspect the divorce file. The court reasoned that the applicant's interest in understanding their parents' past was compelling, and the passage of time meant that any potential prejudice from disclosing the file was minimal. The order of the court permitted the applicant to inspect the file under the supervision of a court officer, ensuring that no confidential or irrelevant material was viewed. This decision underscores the court's willingness to balance the right of access to court files with the need to protect privacy and respect the interests of all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established