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 must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

…

2      The Rules, r 4 meaning of “formal court record”.

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

(8)Without limiting the powers in subclause (7), the Judge may refuse a request for access under this rule solely for the reason that the request does not comply with subclause (2)(a), (b), (c), or (d).

[5]    Rule 12 sets out the matters that must be considered by the court in determining a request for access under r 11:

12       Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(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.

[6]    Whether to grant access to court documents is an evaluative decision. No particular factor, including that of open justice, has paramountcy; a balancing exercise of all the relevant factors is required.3 Further guidance on this is provided in r 13:

13       Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

This application

[7]    First, I note that Mr Macphie’s application meets the information requirements in r 11. He has provided sufficient information for the Court to be satisfied he is related to Mr Blackley. Access to historic divorce files in order to trace genealogy generally is considered a legitimate purpose for making an access request.4

[8]    As put by Ellis J in Re Livingstone v Livingstone, the main considerations relevant to access requests for historic divorce files are the protection of parties’ privacy interests, the freedom of the applicant to seek, receive and impart information, and the existence of the restrictions to access in respect of divorce proceedings.5 I am satisfied that no issues of privacy arise here. Given this file is 81 years old the

3      Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [16] and [30].

4      See, for example, Re Petley v Petley [2022] NZHC 66; Re Niven [2020] NZHC 2604; Re Beban

[2022] NZHC 1278; and Re Livingstone v Livingstone [2015] NZHC 2575.

5      Re Livingstone v Livingstone, above n 4, at [13].

“effluxion of time has lessened any privacy interests or obligation of confidentiality that existed in the information contained in it”.6 The freedom to seek, receive and impart information favours disclosure. These factors, coupled with the genealogical purpose for access, provide good reasons to allow Mr Macphie access.

[9]    Accordingly, I grant Mr Macphie’s application to access this file. However, I also impose one condition of access; that is that Mr Macphie is to confirm in writing to the Court that he will not disclose or share the documents or the contents of the documents to any person other than members of his family, or other than for the stated genealogical purpose for access. I have imposed this condition to mitigate against the possibility that Ms Blackley went on to have another family who may not be aware of her connection to Mr Blackley.

[10]   Once the Court has obtained Mr Macphie’s confirmation that he will abide by this condition, the Registry may provide access to the file.

[11]   Because Mr Macphie lives in England, he of course needs access to electronic copies of the documents. The Registry are to copy the documents and send them to Mr Macphie via email.

Grau J

6      Re Livingstone v Livingstone, above n 4, at [38].