In the Matter of Proceeding No. 3159 of 1970

[2015] VSC 61

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

S CI 1970 3159

IN THE MATTER of Proceeding No. 3159 of 1970

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

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF RULING:	2 March 2015
CASE MAY BE CITED AS:	In the Matter of Proceeding No. 3159 of 1970
MEDIUM NEUTRAL CITATION:	[2015] VSC 61

---

PRACTICE AND PROCEDURE – Application for leave to inspect a divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

---

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

HIS HONOUR:

1. This is an application for leave to inspect the court file in Proceeding No. 3159 of 1970 – a divorce proceeding - pursuant to rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

1. The applicant is the eldest daughter of the parties to the divorce proceeding.  The parties were married on 12 January 1948.  A petition for dissolution of marriage was filed on 18 December 1970.  On 13 October 1971, a decree nisi was granted.  The decree nisi was made absolute on 2 December 1971.

1. The court documents of this proceeding remain upon the court file of the divorce proceeding (divorce file).

1. By a summons filed 18 December 2014, the applicant applies for leave to inspect the divorce file.  The material relied upon in support is an affidavit sworn by the applicant on 12 December 2014.

1. In 2013, the applicant commenced proceedings claiming equitable damages from her mother, allegedly in consequence of her mother resiling from a representation made to her in 2004 that upon her mother’s death she would receive an equal one third of her mother’s assets (Western Australia proceeding).  On the applicant’s account,  almost $5 million has, to date, been disposed of by her mother by way of inter vivos gifts to her siblings or to a trust.

1. In her affidavit, the applicant says as follows:

The only rational basis that I can infer from my mother’s decision to exclude me from the distribution of her assets was that I was the unwilling witness to her adultery with the family doctor when I was child which ultimately led to my parents’ divorce.

1. On 14 January of this year, I ordered that the solicitors for the applicant’s mother be given notice of this application and have the opportunity to file any affidavit or submission in opposition.  The Court has subsequently been advised that there is no opposition to access being granted to the file.

1. There have been a series of decisions of judges of this Court relating to the disclosure of material from old divorce files pursuant to r 28.05(2)(b).[1]  It is only necessary to refer to the most recent of those decision in which Dixon J said:

   [1]In the Matter of an Application by Jill Bear [2009] VSC 122, In the Matter of Proceeding Number 1496 of 1956 [2010] VSC 192, Re Proceeding Number 1364 of 1964 [2010] VSC 494, In the Matter of Proceeding Number 870 of 1947 [2011] VSC 172, Re Proceeding Number 1451 of 1952[2011] VSC 545.

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 any 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.[2]

[2]In the Matter of Proceeding No. 1496 of 1956 [2010] VSC 192 (12 May 2010) [8] (citations omitted).

1. In essence, the applicant contends that there may be (in fact, she uses the words ‘should be’) material in the divorce file that will provide an explanation for her mother’s conduct in relation to the disposition of assets – inconsistent, on the applicant’s case, with the promise made to her by her mother in 2004.  For the following reasons, I am persuaded that the applicant should have access to the file.

1. In the circumstances of this case – that is, to obtain evidence for use in a civil proceeding, I consider that it is appropriate to use the test applicable to access to documents the subject of a subpoena.  The applicant must establish:

(a)        a legitimate forensic purpose for which access to the documents is sought; and

(b)        is it on the cards or a reasonable possibility that the documents sought under the subpoena will materially assist her case?[3]

[3]See Woolworths Limited v Svajcer [2013] VSCA 270, Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & ors [2011] VSC 3.

1. Having inspected the file and having noted the basis upon which production is sought, and allowing for doubt as to whether this line of inquiry will ultimately be productive, I am satisfied that the applicant has:

(a)        Identified a legitimate forensic purpose – namely adducing evidence of the motivation of her mother; and

(b)        It is on the cards that the contents of the divorce file will assist her case.  That is not to say, in any way, that as a matter of fact the material will be used in the Western Australia proceeding.

1. Given that there is no opposition by the applicant’s mother and that the applicant’s father is deceased, I see no real privacy issues arising.  Finally, I note that the applicant has, in effect said that she will use the information solely for the Western Australia proceeding.  I will ask her solicitors to provide an undertaking to this effect.

1. Accordingly, I order, pursuant to r 28.05(2)(b), that the applicant have leave to obtain and inspect copies of documents on the court file in proceeding number 3159 of 1970.