In the Matter of Proceeding No 79 of 1918

[2009] VSC 2

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 79 of 1918

IN THE MATTER of Proceeding No 79 of 1918

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	7 January 2009
CASE MAY BE CITED AS:	In the Matter of Proceeding No 79 of 1918
MEDIUM NEUTRAL CITATION:	[2009] VSC 2

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PRACTICE AND PROCEDURE – Application by non-party to inspect divorce file – Applicant grandson of respondent to petition – Divorce granted in 1918 – Both parties to the marriage long dead – Children of the marriage born between 99 and 115 years ago – Applicant researching family history – 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:

1. Gordon Ross Fisher 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 1918 of his grandfather Edward James Simmons from Sarah Anne Simmons.

1. The relevant principles are stated by Whelan J in In the Matter of Proceeding No 291 of 1944[1].

   [1][2006] VSC 50. See also Re Proceeding No 127/1920 [2007] VSC 302; Re Proceeding No 8 of 1938 [2008] VSC 220.

1. The petitioner in this matter was Sarah Anne Simmons.  She was born in 1869, and was 49 years old at the time of the divorce.  The respondent, Edward James Simmons, was of the same age.

1. Edward James Simmons later married Mr Fisher’s grandmother, Bessie Margaret Mitchell.

1. Mr Fisher is now in his sixties.  He is undertaking research into his family history.  He is finding this difficult because of the separation of family members.  He believes that access to the records of the divorce will assist.  This is the sole purpose of his request.

1. The parties to the marriage must now be long dead.  There were 4 children of the marriage.  It seems that Mr Fisher is not acquainted with any of them or with their own families (if any).  The youngest of them, if still alive, would now be 99 years old. The eldest would be 115 years of age.  Having been specifically asked about this by the Prothonotary, Mr Fisher states that he knows of no person, apart from himself, who would have an interest in the information in the file or who might be impacted by his having access to the information.

1. In view of the fact that the divorce occurred over 90 years ago, I am prepared to accept, despite the paucity of information about other descendants, that granting access to the file to Mr Fisher is unlikely to infringe the privacy interests of any other person.  Mr Fisher has a valid interest in seeking access to the file.

1. Accordingly, I order pursuant to r 28.05(2)(b) of the Rules that the applicant, Gordon Ross Fisher, have leave to inspect and obtain copies of documents on the file of proceeding no 79 of 1918.