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.

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: [2022] NZHC 64
Decision Date: 1 February 2022

CaseChat Overview and Summary

Mr Bevan has applied for access to two divorce files from 1924 and 1932, involving his grandfather, Arthur John Bevan. The application was heard by Isac J and the matter was determined on the papers. The central legal issue in this case is whether Mr Bevan should be granted access to the divorce files for the purpose of family research. This issue hinges on the provisions of the Senior Courts (Access to Court Documents) Rules 2017, specifically the restrictions on accessing files relating to family proceedings.

The court considered the principles and factors set out in the Rules, including the protection of privacy and confidentiality, the principle of open justice, and the age of the files. The court noted that the files in question are very old and the parties involved are highly unlikely to be alive, which significantly reduces any privacy concerns. Additionally, the court referenced the precedent set in Re (1921) Livingstone v Livingstone, where a similar application for access to old divorce files was granted due to the passage of time and the lessening of privacy interests. Isac J concluded that there was a good reason to allow access to the files, given the circumstances.

The court granted the application, allowing Mr Bevan access to the divorce files for family research purposes. This decision recognises the diminishing privacy interests associated with the age of the files and the public interest in facilitating family research.

Orders