Bork v Bork

[2025] NZHC 336

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

D/3238

[2025] NZHC 336

UNDER	the Senior Courts (Access to Court Documents) Rules 2017
IN THE MATTER	of an application for access to Court file in Bork v Bork D/3238

Hearing:	On the papers
Judgment:	28 February 2025

JUDGMENT OF McQUEEN J

[1]                 Ms Lisa Bottin has made an application for access to the divorce file involving Rachel Bork and August Bork.

[2]                 Ms Bottin is seeking the file for the purpose of family research. Ms Bottin is related to the Bork family by marriage. Ms Bottin is seeking to establish if there is anything located in the file as to Rachel Bork’s last known whereabouts. Ms Bottin confirms that both parties are deceased, indicating that August Bork died in 1957 and, although there is no record of Rachel Bork’s death, she was born in 1880. Ms Bottin says that their children are also deceased.

Access to court documents—legal principles

[3]                 The application falls for determination under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

Bork v Bork D/3238 [2025] NZHC 336 [28 February 2025]

[4]                 Rule 8(1) of the Rules provides that every person has a general right of access to the formal court record in civil proceedings. However, Ms Bottin seeks access to all documents on the file which goes beyond the formal court records. Accordingly, her request must be determined under r 11. Under r 11, a Judge may grant a request with or without conditions. The relevant principles for the Court to consider are outlined in r 12 as follows:

(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.

[5]                 In r 13, the approach the Court should follow is explained with particular reference to whether the application is made before or after a substantive hearing.

[6]                 In this case, the file is subject to restriction under r 7 because it is concerned with a divorce proceeding under a precursor to the Family Proceedings Act 1980. As

a result, the Court is required to consider, not only the matters set out in r 12 (as mentioned above) but, in terms of s 7, it must be satisfied there is good reason for permitting access.

[7]                 In considering the application, I have applied the general approach that is set out in Livingstone v Livingstone which, although considered under the previous High Court Rules relating to access to court documents, remains relevant to the present rules.1 In Livingstone, Ellis J considered the need to show a recognisable and legitimate public or private interest, the need for an understanding of the interest that the applicant has in the file, the importance of considering the protection of the parties’ confidentiality and privacy interests—including, as relevant, the privacy interests of other family members which may endure beyond the death of a party to the proceedings in question—and freedom of expression, or the freedom to seek, receive and impart information. In Livingstone, having balanced those factors, Ellis J 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”.2

[8]                 In this case I am satisfied that Ms Bottin has a legitimate interest in the papers to which access has been sought. Although the divorce would have warranted a degree of privacy at the time, the case was concluded nearly 100 years ago now and the information is sought for family research purposes.

[9]                 Accordingly, and balancing the relevant factors, I am satisfied that there is good reason for permitting access.

Result

[10]The application for access is granted.

[11]             Under s 4 of the Rules, “access” means “to search, inspect, or copy under the supervision of an Officer of the Court”. Ms Bottin may have access to the file at the Court and make copies of any of the documents on the file for herself or members of

1      Livingstone v Livingstone [2015] NZHC 2575, generally at [8]–[37].

2 At [38].

her immediate family. I will leave it for Ms Bottin to make arrangements with the Registrar to visit the Court, view the file and determine whether copies are sought. If photocopies or scanned copies are sought, I direct that Ms Bottin will need to sign a brief acknowledgement of the fact that the copies made will be for her and members of her immediate family only.

McQueen J