In the Matter of Proceeding No. 356 of 1941

[2011] VSC 396

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 356 of 1941

IN THE MATTER of Proceeding No. 356 of 1941

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

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2011
DATE OF JUDGMENT:	18 August 2011
CASE MAY BE CITED AS:	In the Matter of Proceeding No. 356 of 1941
MEDIUM NEUTRAL CITATION:	[2011] VSC 396

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PRACTICE AND PROCEDURE – Application for leave to inspect a divorce file pursuant to r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 – Whether applicant has sufficient interest to inspect file – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	None.  The application was dealt with on the papers in accordance with the practice of the Court.

HIS HONOUR:

1. This is an application for leave to inspect the file in Divorce Proceeding No. 356 of 1941.  

1. The relevant principles to be applied in an application of this kind were stated by Whelan J in In the matter of Proceeding No. 291 of 1944.[1]  The matters to be considered include:

   [1][2005] VSC 50.

(a)       who the applicant is and their association, if any, with the parties;

(b)      the purpose for which access is sought;

(c)       how the applicant perceives that access will further this purpose;

(d)      the use the applicant intends to make of the information, if access is provided; and

(e)       who, if anyone, may have an interest in the file or in the application, and, if there is any such person, whether they have been notified of the application.[2] 

[2]Ibid, [22].

1. The nature of the association between the applicant and the parties to the divorce file which is the subject of the application is of obvious importance.  Usually, those unable to establish a familial relationship with one of the parties will face a difficult task in obtaining leave to inspect the divorce file.  Of course, there may be exceptional cases. 

1. The application was made in conjunction with an application to inspect the divorce file in another matter (‘the second matter’).  The applicant has named a third person, who he believes was a party to the divorce in the second matter (‘the third person’). 

1. I infer that there may be some relationship between the parties named in the two matters, but this is not proved from the brief hand written application or supporting affidavit; and is not readily apparent from the file in this proceeding. 

1. There is no record of a divorce file in this Court relating to the third person, and there is accordingly no file in the second matter to consider. 

1. The applicant applies for leave to inspect the file in this proceeding on the ground that he is ‘the second cousin once removed’ of the third person; and that he wants to inspect the file as part of a ‘family history project’. 

1. I am not satisfied that, as the evidence presently stands, the applicant has demonstrated a sufficient association with the named party to this proceeding, such as to justify granting him leave to inspect the file.  Another application made on proper material, establishing a sufficient relationship between the applicant and the named party in this proceeding may result in a different outcome.  From the affidavit sworn on behalf of the applicant, it appears that he may be legally qualified.  If so, the preparation of an affidavit in proper form, addressing the criteria contained in the decision of Whelan J referred to above, should pose no difficulty if the application is thought to be worth the effort. 

1. The application for leave to inspect the file in this proceeding is refused.