Blackley v Blackley - [2024] NZHC 2524

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

R26082355

[2024] NZHC 2524

BETWEEN
JOSEPHINE SKELTON BLACKLEY

Plaintiff

AND

ALBERT BLACKLEY

Respondent

On the papers:

Judgment:

4 September 2024

JUDGMENT OF GRAU J

[Access to Court documents]

A request to access court documents

[1] An application to access a historic court file has been referred to me as duty Judge. Mr Donald Macphie seeks access to the court file of a 1943 divorce named Blackley v Blackley (In Divorce No. 950). These divorce proceedings are between Mr Macphie’s second cousin once removed, Mr Albert Blackley, and his first wife, Ms Josephine Blackley (née Skelton). Mr Macphie wishes to access the documents to help him trace his family history and the arrival of Mr Blackley to New Zealand from Scotland.

The applicable rules

[2] Access to court documents is regulated by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Every person has the right to access the formal court record relating to a civil proceeding.1 The formal court record includes judgments, orders, or minutes of the court, including any record of the reasons given

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

RE BLACKLEY v BLACKLEY [2024] NZHC 2524 [4 September 2024]

by a Judge.2 There are a number of documents in the file which would fall in this category, including the decree nisi and the final absolute decree. However, the right to access the formal record does not include a right to access the other types of documents which are contained in the Court file relating to this matter. The file includes a praecipe (an order for a writ or other legal document), an application for decree absolute, affidavits, a petition for divorce, citations, notes of evidence, and a marriage certificate.

[3] Additionally, r 7 of the Rules restricts access to all documents (including judgments or orders) relating to the Family Proceedings Act 1980 and its predecessors. It is likely that this matter was dealt with under the Divorce and Matrimonial Causes Act 1928, which was a predecessor to the Family Proceedings Act. Access to the file is therefore restricted and may only be permitted under r 7(1)(a) if the Judge is satisfied there is “good reason for permitting access”.

[4] Determination of a request for access to documents is governed by r 11, which states:

11 Any person may ask to access documents

(1)This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which…

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.

Continue reading Blackley v Blackley

Details

AGLC: Blackley v Blackley [2024] NZHC 2524
Case: [2024] NZHC 2524
Decision Date: 4 September 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Judge Grau considered an application by Mr Donald Macphie to access a historic court file from a 1943 divorce case between Albert Blackley and his first wife, Josephine Blackley (née Skelton). Mr Macphie, who is a second cousin once removed from Mr Blackley, seeks access to the file to assist with tracing his family history and the arrival of Mr Blackley to New Zealand from Scotland. The application to access the court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017, which provide a right of access to the formal court record but restrict access to certain types of documents, particularly those relating to family law proceedings.

The court had to determine whether to grant Mr Macphie's request under the rules, considering factors such as the orderly and fair administration of justice, privacy interests, and the principle of open justice. The court found that the privacy interests were minimal given the age of the file and that the genealogical purpose for access was legitimate. The court also noted the restrictions on access to family law documents but determined that these restrictions did not outweigh the other factors in this case.

After evaluating the relevant factors, Judge Grau granted Mr Macphie's application to access the file but imposed a condition that he must confirm in writing that he will not disclose the documents to anyone other than his family members or for the stated genealogical purpose. The court also directed that electronic copies of the documents be sent to Mr Macphie via email, as he resides in England. Once Mr Macphie confirms that he will adhere to the imposed condition, the Registry may provide access to the file.

Orders