Flood v Flood

[2023] NZHC 2649

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

D/No 5210

[2023] NZHC 2649

UNDER	the Senior Courts (Access to Court Documents) Rules 2017
IN THE MATTER OF	an application for access to the Court file in PATRICK FLOOD v MAXINE FLOOD and ROY FRAPWELL

Hearing:	On the papers
Judgment:	21 September 2023

JUDGMENT OF McQUEEN J

[Access to Court documents]

[1]    Before me is an application to access historical court files that have been deposited with Archives New Zealand. The applicant, Mr Andrew Frapwell, applies to access the 1938 divorce record of Patrick Flood v Maxine Flood and Roy Frapwell.1 Mr Frapwell applies on behalf of his father, Mr Derek Frapwell, who would like access to scanned copies of all documents on the court record, for the purpose of researching his family history. The background provided in the application indicates that on obtaining a birth certificate for the purpose of claiming superannuation, Mr Derek Frapwell discovered that his legal surname was Flood. He subsequently changed his legal name to Frapwell.

[2]Mr Frapwell is happy to abide by any conditions imposed by the Court.

1      Under s 21 of the Public Records Act 2005, public records held by every public office must be transferred to Archives New Zealand after 25 years. For the purpose of this request for access, the records have been returned to the Court pursuant to s 24 of that Act.

FLOOD v FLOOD and FRAPWELL [2023] NZHC 2649 [21 September 2023]

Legal framework for access to court documents

[3]    Applications for access to court documents are assessed within the framework provided by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). The Rules apply to documents while they are in the custody and control of the court, including documents transferred from Archives New Zealand to the Court.2

[4]    Rule 8 provides that every person has the right to access the formal court record relating to a civil proceeding. The “formal court record” is defined in r 4 to include “a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge”. It also includes the register of documents filed in the proceeding.3 Thus, these are documents to which Mr Frapwell may have access without permission from the Court. To obtain such documents, r 10(1) requires Mr Frapwell to ask the Registrar “for access to 1 or more documents”. If necessary, to first understand what documents are available, Mr Frapwell can request the register of documents filed in the proceeding.

[5]    Mr Frapwell’s request for access goes beyond the formal court record, as he seeks all documents on the court file relating to “Dissolution of Marriage or Civil Union Records held in archive between Flood Patrick & Maxine”. Although a term such as the court file is not particularly apt for archived documents, the court file is defined as “means a collection of documents in the custody or control of the court that relate to a civil proceeding or a criminal proceeding (including an interlocutory application associated with the proceeding) or an appeal”. As the file has been transferred from Archives New Zealand, it is now in the custody and control of the court.

[6]    It is therefore necessary to consider whether I should allow access to other documents on the file under r 11.

1. Rule 11(2) requires that a request for access to court documents:

(a)identify the person making the request and their address;

2      Senior Courts (Access to Court Documents) Rules, r 3(1)(b).

3      Fuji Xerox New Zealand Limited v Whittaker [2018] NZHC 1043 at [11]–[13].

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

(c)gives reasons for asking to access the document, which must be 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).

[8]    Rule 11(3) requires the Registrar to promptly give a copy of the request to the parties or their lawyers, although under r 11(4), this may be dispensed with by a Judge if it is impractical to require notice to be served.

[9]    Rule 11(8) provides that a Judge may refuse a request for access under r 11 solely for the reason that the request does not comply with subcls (a) to (d) (as set out above).

[10]   In determining a request for access under r 11, a Judge must consider all the factors set out in r 12.

[11]   Rule 13 provides that when applying r 12, a Judge must have regard to the stage a proceeding has reached. Rule 13 provides that 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. During the substantive hearing stage, open justice has greater weight. After the hearing, open justice has greater weight in relation to documents that have been relied on in a determination, but the protection of confidentiality and privacy interests have greater weight than would be the case during the substantive hearing.

Discussion

[12]I am satisfied that:

(a)it is appropriate to dispense with the requirement that the Registrar serve the request on the parties to the proceeding, given the passage of time, and likely death of parties to the divorce record; and

(b)having considered the matters contained in rr 11,  12, and 13, that    Mr Frapwell should be granted access to the entire court file, for the purpose of researching his family history.

[13]   Accordingly, I direct the Registrar to provide Mr Frapwell with scanned copies of the documents contained on the court file. I do not consider it necessary to impose any conditions.

McQueen J