MacGillivray v MacGillivray - [2021] NZHC 780

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

NO. D. 331/72

[2021] NZHC 780

UNDER the Senior Court (Access to Court Documents) Rules 2017

IN THE MATTER OF

an application for access to the Court files

BETWEEN

WILHELMINA ERNESTINE MACGILLIVRAY

Petitioner

AND

JAMES MORRISON MACGILLIVRAY

Respondent

AND

COLLEEN KERRISON

Applicant

On the Papers

Judgment:

13 April 2021

JUDGMENT OF ISAC J

Introduction

[1] Ms Kerrison has filed an application for access to a divorce file involving Ms Wilhelmina MacGillivray and Mr James MacGillivray (née Berg) as parties. She seeks access to the documents on the Court file as part of the work she is undertaking on her family tree. Ms Kerrison says she would like “to fill in missing information in regard to this marriage, as I am unable to find anything about them.”

[2] On 18 March 2021 I issued a minute in which I directed Ms Kerrison to file brief submissions explaining her familial relationship to Mr MacGillivray and Ms Berg, and whether she intends to share any information disclosed to her under her

MACGILLIVRAY v MACGILLIVRAY [2021] NZHC 780 [13 April 2021]

application to family members or others (either directly or by way of a summary of the relevant information).

[3]On 28 March Ms Kerrison helpfully provided a response. In it she advised:

(a)Mrs MacGillivray was Ms Kerrison’s grandmother’s sister, and therefore her great-aunt.

(b)She does not seek permission to distribute or disseminate the Court documents to any other person, it being a personal family history.

The framework for access to Court documents

[4] Access to Court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017 (Rules).

[5] Pursuant to rr 8(1) and (2), every person has a general right to access the “formal Court record” relating to a civil proceeding, and the right to access to any document relating to an application for a grant of administration under the Administration Act 1969.

[6]The “formal Court record” is defined in r 4 as:

formal court record means any of the following kept in a registry of the court:

(a)a register or an index:

(b)a published list that gives notice of a hearing:

(c)a document that—

(i)may be accessed under an enactment other than these rules; or

(ii)constitutes notice of its contents to the public:

(d)a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge:

…

Since the applicant was not a party to the proceeding, and she seeks access to all documents on the Court file, she must apply for access under r 11.

[7] Also relevant to the Court’s consideration of the application is r 7. This rule is stipulated to be an exception to the general right of access in r 8. It provides:

7 Restriction on access in proceedings under certain enactments

(1)A person may not access a document, a court file, or any judgment or order that relates to…

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.

Keep reading for free

Create a free CaseChat account to read MacGillivray v MacGillivray and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 780
Decision Date: 13 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, Colleen Kerrison applied for access to the court files relating to a divorce proceeding between Wilhelmina Ernestine MacGillivray and James Morrison MacGillivray. Kerrison, who claims to be a relative of one of the parties, sought access to the files for the purpose of completing her family tree. The application was made under the Senior Court (Access to Court Documents) Rules 2017. The central issue before the court was whether Kerrison, who was not a party to the original proceedings, should be granted access to the divorce file under the rules. The court considered the general right of access to court documents, the definition of a "formal court record," and the specific provisions of the Senior Courts (Access to Court Documents) Rules 2017. Notably, Rule 7 restricts access to documents in certain proceedings, including those under the Family Proceedings Act 1980 and the Matrimonial Proceedings Act 1963, unless the judge is satisfied there is good reason for permitting access.

The court determined that there was a good reason for granting Kerrison access to the divorce file. Kerrison's relationship to one of the parties, the historical nature of the proceedings, and the fact that both parties to the divorce are deceased all supported the application. The court also considered the principles of open justice and the freedom to seek, receive, and impart information. However, recognising the sensitive nature of the information, the court imposed a condition that Kerrison is not to copy, disseminate, or provide the court documents to any other person without the court's leave. This order was made pursuant to Rule 11(7)(a)(ii), reflecting the limited purpose for which the documents were sought and Kerrison's commitment not to share the information with others. The court granted the application and made the aforementioned order.

Orders