Bevan v Bevan Applications to access Court files

[2022] NZHC 64

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

D2590 D3814

[2022] NZHC 64

UNDER	the Senior Courts (Access to Court Documents) Rules 2017
IN THE MATTER OF	an application for access to the Court file in Bevan v Bevan D/2590 and Bevan and Bevan D/3814

Hearing:	On the papers
Judgment:	1 February 2022

JUDGMENT OF ISAC J

Introduction

[1]                 Mr Bevan has filed an application for access to two divorce files involving his grandfather, Arthur John Bevan, from 1924 and 1932. He is seeking the files for the purpose of family research.

Access to Court documents — legal principles

[2]                 Access to Court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017 (Rules).

[3]                 The Rules provide that every person has a general right of access to the formal court record in civil proceedings.1 However, the applicant seeks access to all

1      Senior Courts (Access to Court Documents) Rules 2017, r 8(1).

Bevan v Bevan Applications to access Court files [2022] NZHC 64 [1 February 2022]

documents on the file which goes beyond the formal court record. Accordingly, his request must be determined under r 11.

[4]                 Relevantly, r 7 restricts access to documents relating to proceedings under the Family Proceedings Act 1980 (FPA) and its predecessors.2 The file in question relates to divorce proceedings brought under the Divorce and Matrimonial Causes Acts of 1908 and 1928 respectively, both predecessors of the FPA. Therefore, access to the file is restricted and access may only be permitted under r 7(1)(a) if the Judge is satisfied there is a good reason.

[5]                 In determining a request for access under r 11, the Judge “must consider the nature of, and the reasons for, the request” and take into account each of the following matters that are relevant:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

2      Application for access to the Court files, Kerrison HC Wellington D 331-72, 18 March 2021 at [6].

Discussion

[6]                 First, I note that Mr Bevan’s application meets the information requirements in the Rules.3 Moreover, I am satisfied from the information provided that Mr Bevan is related to a party in the file.

[7]                 In Re (1921) Livingstone v Livingstone, Ellis J considered a similar request in which relatives of parties to divorce litigation in 1921 sought access to the files for the purpose of family research. In determining the request, Her Honour weighed three main factors:4

(a)the protection of the parties’ confidentiality and privacy interests;

(b)the freedom of the applicants to seek, receive, and impart information (although noting that such freedom is limited where the information is private in nature)5; and

(c)the existence of a r [7] restriction (noting that divorce proceedings are inherently personal and private).6

[8]                 Having balanced the above factors, Her Honour granted the application “in large part because the effluxion of time has lessened any privacy interests or obligation of confidentiality that existed in the information contained in it”.7

[9]                 The balance of relevant considerations in this case is similar in many aspects to that in Livingstone. The files are both old — 90 and 98 years old respectively — and the parties to the proceedings are highly unlikely to be alive.8 The 100-year access restrictions on the files will expire shortly.9 These factors significantly lessen any

3      Rule 11(2).

4      Re (1921) Livingstone v Livingstone [2015] NZHC 2575, [2015] NZAR 1827 at [13].

5 At [37].

6 At [19].

7 At [38].

8      Based on the ages of the parties disclosed in the Court documents, the youngest would now be 122 years old.

9      Pursuant to determinations made under ss 43 and 44 of the Public Records Act 2005.

privacy interests in the file. I am satisfied there is good reason for allowing Mr Bevan access to the files.

Result

[10]The application for access is granted.

Isac J