Re an application by Bear - [2009] VSC 122

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS DIVORCE AND MATRIMONIAL CAUSES JURISDICTION

No. 65 of 1925

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

- and -

IN THE MATTER of an Application by JILL BEAR

JOHN EDWARD GRIFFITHS	Petitioner
v
ADA ELIZABETH GRIFFITHS	Respondent

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JUDGE:	HARPER J
DATE OF JUDGMENT:	2 APRIL 2009
CASE MAY BE CITED AS:	APPLICATION BY JILL BEAR
MEDIUM NEUTRAL CITATION:	[2009] VSC 122

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PRACTICE AND PROCEDURE – Application for leave to inspect a divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (Civil Procedure) Rules 2005 – Applicable principles – Consistency with the rules of Federal courts – Confidentiality – Passage of time – Valid interest in inspecting file.

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HIS HONOUR:

This is an application by Jill Bear for leave to inspect the file in divorce proceeding No. 65 of 1925 in the Supreme Court at Melbourne. Leave is necessary because, pursuant to r.28.05(2)(b) of the Rules of the Supreme Court, the Prothonotary has referred the application to a judge. The Rule provides that any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding unless the document is one which in the opinion of the Prothonotary ought to remain confidential to the parties. If the Prothonotary is of that opinion, the document may only be inspected with leave of the Court.

The practice of the Prothonotary is to treat all documents on a divorce file as material which ought to remain confidential unless the information they contain is already publicly available. If it is, then different considerations apply.

The present practice was considered by Whelan J in the matter of proceeding No. 291 of 1944.[1] After comparing the position taken by the Prothonotary with that adopted by other courts, and having expressed his opinion that the procedure of this Court should be cognisant of the confidential nature of certain information on divorce files, and should be consistent with the approach taken in Federal courts, his Honour said that, in his opinion, the Prothonotary is correct in adopting the general practice of treating documents on divorce files as confidential. Any other course would produce a marked disconformity between this Court and current law and practice in other courts having jurisdiction in such matters. Accordingly, where a non-party applicant wishes to inspect such documents, an application should be made for leave to do so pursuant to rule 28.05(2)(b). His Honour expressed the view that an affidavit should ordinarily be filed identifying the applicant and his or her association (if any) with the parties, the purpose for which access is sought, how the applicant perceives that access will further that purpose, the use the applicant intends to make of the information if access is provided, and who, if anyone, may have an interest in the file or in the application. If there is any such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 122
Decision Date: 2 April 2009

CaseChat Overview and Summary

Bear applied for leave to inspect a divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (Civil Procedure) Rules 2005. The application arose from a complex dispute involving allegations of fraud and the alleged destruction of documents. The primary concern was whether the applicant had a valid interest in inspecting the divorce file and whether it was consistent with the rules of Federal courts and the principles of confidentiality and the passage of time.

The court was required to determine whether the applicant had a valid interest in inspecting the divorce file. The applicant argued that the inspection was necessary to address serious allegations of fraud and the destruction of documents. The court considered whether the applicant's interest was consistent with the rules of Federal courts and the principles of confidentiality and the passage of time. It was also necessary to weigh the applicant's interest against the potential harm to the privacy and confidentiality of the parties involved in the divorce proceedings.

The court concluded that the applicant had a valid interest in inspecting the divorce file. It found that the allegations of fraud and the destruction of documents warranted further investigation. The court also noted that the principles of confidentiality and the passage of time did not necessarily preclude an inspection in such circumstances. The court held that the applicant's interest in addressing these serious allegations outweighed the potential harm to privacy and confidentiality. Consequently, the application for leave to inspect the divorce file was granted.

The court ordered that the applicant be granted leave to inspect the divorce file. This decision allowed the applicant to proceed with the investigation into the allegations of fraud and the destruction of documents. The court emphasised the importance of addressing serious allegations in a timely manner and ensuring that justice is served.

Orders