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…

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 Flood v Flood

Details

AGLC: Flood v Flood [2023] NZHC 2649
Case: [2023] NZHC 2649
Decision Date: 21 September 2023

CaseChat Overview and Summary

The High Court of New Zealand considered an application for access to historical court files deposited with Archives New Zealand. The applicant, Mr Andrew Frapwell, sought access to the 1938 divorce records of Patrick Flood v Maxine Flood and Roy Frapwell on behalf of his father, Mr Derek Frapwell, who seeks to research his family history. Mr Frapwell agreed to any conditions the Court may impose. The case involved the interpretation and application of the Senior Courts (Access to Court Documents) Rules 2017.

The primary legal issue was whether Mr Frapwell should be granted access to the entire court file beyond the formal court record, as defined in the Rules. The Rules grant the right to access the formal court record, which includes judgments, orders, minutes of the court, and the register of documents filed. However, access to other documents on the court file requires permission from the Court, as outlined in Rule 11. The Court had to determine whether Mr Frapwell's request complied with Rule 11 and, if so, whether it should grant access considering the factors in Rule 12, including the stage of the proceeding and the principles of confidentiality, privacy, and open justice.

The Court found that it was appropriate to dispense with the requirement to notify the parties to the proceeding due to the passage of time and the likely death of the original parties. After considering the request under Rule 11 and the relevant factors in Rule 12, the Court concluded that Mr Frapwell should be granted access to the entire court file for the purpose of researching his family history. The Court did not impose any conditions on the access.

The Court directed the Registrar to provide Mr Frapwell with scanned copies of the documents contained on the court file. The Court determined that no conditions were necessary given the personal nature of the request and the absence of any compelling reasons to restrict access.

Orders