In the matter of Proceeding No 291 of 1944 [2006] VSC 50 (21 February 2006)

Last Updated: 21 February 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 291 of 1944

IN THE MATTER of Proceeding No. 291 of 1944 IN THE MATTER of an Application Pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2006
DATE OF JUDGMENT:	21 February 2006
CASE MAY BE CITED AS:	In the Matter of Proceeding No. 291 of 1944
MEDIUM NEUTRAL CITATION:	[2006] VSC 50

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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 (General Civil Procedure) Rules 2005 – Applicable principles – Consistency with the rules of Federal courts – Confidentiality – Valid interest in inspecting the file.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person

HIS HONOUR:

1 This is an application for leave to inspect the file in divorce proceeding no. 291 of 1944.

2 The applicant is the only child of the parties to the divorce proceeding. The parties were married on 21 December 1925. The applicant was born on 26 November 1937. A petition for dissolution of marriage and custody of the applicant was filed on 3 March 1944 by the petitioner. On 10 May 1944 a decree nisi was granted and the petitioner was ordered to have custody of the applicant. The decree nisi was made absolute on 11 August 1944.

3 The applicant initially submitted a request to the Prothonotary by letter dated 4 July 2005 seeking to obtain transcript of both the divorce proceeding and the custody proceeding, if transcript were available. The request was referred to me whilst sitting in the Practice Court. The Senior Deputy Prothonotary contacted the applicant and suggested that he apply for leave to inspect the file pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005.

4 By letter dated 26 November 2005, the applicant now applies for leave to inspect the file pursuant to Rule 28.05(2)(b). The applicant seeks leave to inspect all submissions to the Court regarding custody orders, and the factors that were considered by the Court in making custody orders. The material relied upon in support of the application is an affidavit affirmed by the applicant on 25 November 2005.

5 The applicant is 68 years of age. The applicant deposes that the parties to the proceeding both died in 1967. The respondent died on 23 July 1967 at Rye, Victoria, and the petitioner died on 24 July 1967 at Keon Park, Victoria.

6 The applicant seeks leave to inspect the file on the ground that he does not have a clear understanding of the processes the Court followed in making the custody orders. He deposes that there is an absence of relevant written material from the petitioner’s possessions, and an absence of oral history from his relatives, all of whom are now deceased. The applicant states that the custody process was a significant event in his early childhood and had ramifications for his future life and development.

7 Prior to the introduction of the Family Law Act 1975 (Cth), this Court had jurisdiction in divorce and matrimonial causes. The court files for divorce proceedings issued in this Court are held, with some exceptions, by the Prothonotary.

8 There is no direct authority on the principles to be applied by the Court in considering requests to inspect divorce files.

9 The general rule is that any person may inspect and obtain a copy of any document filed in a civil proceeding pursuant to Rule 28.05(1) of the Supreme Court (General Civil Procedure) Rules 2005. Rule 28.05(1) extends to divorce files.^[1]

10 There are exceptions to this general rule. Rule 28.05(2) provides that:

(a) a document may not be inspected or copied if the Court has ordered that the document remain confidential;

(b) a non-party may not, without leave of the Court, inspect or obtain a copy of a document which, in the opinion of the Prothonotary, ought to remain confidential to the parties.

11 If leave is granted to a non-party under Rule 28.05(2)(b), conditions may be imposed upon inspection and copying.^[2]

12 The practice of the Prothonotary to date has been to treat as material which ought to remain confidential all documents on a divorce file. The Prothonotary has allowed the release of information to non-parties where the information is publicly available in any event. Such information includes dates of marriage, dates of birth and like information. I apprehend that the Prothonotary has acted in this manner as he has formed the opinion that documents on divorce files ought to remain confidential to the parties.

13 In relation to civil proceeding files generally, this Court has adopted an open approach. In Re a Former Officer of the Australian Security Intelligence Organisation,^[3] Brooking J, in reference to the former Order 61, Rule 17 (the equivalent to what is now Rule 28.05), stated that the Court "proceeds on the basis that the public has a right to inspect documents filed and even when the new [Chapter] I comes into force that will remain the general rule."^[4]

14 A more restrictive approach, with an emphasis on confidentiality, governs inspection of divorce files in Federal jurisdictions.

15 Rule 24.13(1) of the Family Law Rules 2004 (Cth) provides that, in addition to the Attorney-General and the parties, a person with a proper interest in the case, or in information obtainable from the court record in the case, may, with the permission of the court, search the court record relating to a case, or inspect or copy a document forming part of the record.

16 A provision similar to Rule 24.13(1) is contained in the Federal Magistrates Court Rules 2001 (Cth). Rule 2.08(1) provides that, in addition to the Attorney-General (in relation to family law or child support proceedings) and the parties, a person may be granted leave to search the records relating to a proceeding or inspect a document forming part of the records. Leave may be granted to persons who demonstrate a proper interest in searching the records or inspecting a document. Conditions may be imposed when leave is granted.

17 In Hillston v Bar-Mordecai,^[5] a Family Court file was produced to the Supreme Court of New South Wales in relation to a civil proceeding. The plaintiff’s application for leave to inspect the file was objected to. Bryson J followed, in substance, the former Order 5, Rule 6 of the Family Law Rules 1984 (Cth) (which was replaced by Rule 24.13(1)), and the relevant rule of the Supreme Court governing inspection of subpoenaed documents. The confidential nature of the material on file was given a "relatively high value" in considering the application for inspection.^[6] The plaintiff was granted leave to inspect certain affidavits, as there was a legitimate forensic purpose in doing so. Orders were made limiting access to and use of confidential material otherwise contained in the affidavits.

18 Rule 2.08(1) of the Federal Magistrates Court Rules 2001 (Cth) was considered in Loxias Technologies Pty Ltd & Curatherapy Distribution Pty Ltd.^[7] Raphael FM noted that Rule 2.08 is unique and provides the Federal Magistrates Court with more discretion as to inspection and searching of court records than other courts. He determined that the procedures followed in civil courts not having family law jurisdiction should govern applications to inspect general civil proceeding files in the Federal Magistrates Court,^[8] but that a more restrictive requirement, that a "proper interest" in inspecting documents be demonstrated, should be required for family law proceeding files.^[9]

19 It seems to me 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.

20 Due to the age of this Court’s files, confidentiality issues may not arise to the same extent as in courts with current family law jurisdiction. The privacy of parties and relevant non-parties may be less likely to be compromised given the fact that the information on most files is very old.

21 Notwithstanding these considerations, in my view, the Prothonotary has been 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 courts having jurisdiction in such matters.

22 Where a non-party applicant wishes to inspect such documents, the applicant should apply for leave under Rule 28.05(2)(b) to inspect the file. An affidavit should ordinarily be filed, stating:

(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.

23 On this application, the applicant has satisfied each of these requirements. Whilst the applicant has not expressly identified those persons, if any, who have an interest in the file or in the application and whether they have been notified, in his affidavit, he has appeared before me and given satisfactory sworn evidence on that issue.

24 In my view, the applicant should have leave to inspect the file in proceeding no. 291 of 1944. The applicant, as the only child of the parties and the subject of an order of the Court, has a direct association with the proceeding. The applicant has a valid interest in inspecting the file. The documents on file may assist the applicant in gaining an understanding of matters which may have had a significant bearing on his life. The applicant is now 68 years of age. On the material before me, it seems that inspection of these documents by the applicant will not compromise the privacy of the parties to the proceeding or non-parties. The parties to the proceeding are dead. It is unlikely that there are other persons interested in the application or the file.

25 I accordingly order pursuant to Rule 28.05(2)(b) that the applicant has leave to inspect and obtain copies of documents on the file of proceeding no. 291 of 1944.

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^[1] Supreme Court (General Civil Procedure) Rules 2005 Rule 1.05(1).

^[2] "XYZ 1" v State of Victoria [2001] VSC 233, [27].

^[3] [1987] VR 875.

^[4] Ibid 878.

^[5] [2002] NSWSC 973.

^[6] Ibid [8].

^[7] [2002] FMCA 107.

^[8] Ibid [5].

^[9] But see Re an Application by the NSW Bar Association [2004] FMCA 52, although note postscript at [7]-[8].