McGregor v McGregor - [2024] NZHC 2540

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

R26012468

[2024] NZHC 2540

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

IN THE MATTER OF

applications for access to the Court files McGregor v McGregor (D2/1935)

On the papers:

Judgment:

5 September 2024

JUDGMENT OF GRAU J

[Access to Court documents]

A request to access documents

[1] An application to access a historic court file has been referred to me as Duty Judge. Ms Hera McGregor seeks access to the court file of a 1935 divorce matter named McGregor v McGregor (In Divorce No. 2/1935). These proceedings are between Ms McGregor’s paternal great-grandfather, Mr John McGregor, and his first wife, Ms Elvie McGregor (née Fleming). Ms McGregor wishes to access the documents in order to help her trace her paternal family history.

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 MCGREGOR v MCGREGOR [2024] NZHC 2540 [5 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] In addition, 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…

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 McGregor v McGregor

Details

AGLC: McGregor v McGregor [2024] NZHC 2540
Case: [2024] NZHC 2540
Decision Date: 5 September 2024

CaseChat Overview and Summary

Ms Hera McGregor applied to access the court file of a 1935 divorce matter, McGregor v McGregor (In Divorce No. 2/1935), between her paternal great-grandfather, Mr John McGregor, and his first wife, Ms Elvie McGregor (née Fleming). Ms McGregor sought access to the documents in order to trace her paternal family history. The application was referred to the Duty Judge, Grau J, as per the Senior Courts (Access to Court Documents) Rules 2017. The Rules provide that every person has the right to access the formal court record relating to a civil proceeding, including judgments, orders, or minutes of the court. However, the Rules also restrict access to certain documents relating to Family Proceedings Act 1980 and its predecessors, such as the Divorce and Matrimonial Causes Act 1928. The Judge was required to consider the nature of, and reasons given for, the request, as well as the relevant matters outlined in the Rules, including the protection of confidentiality and privacy interests and the principle of open justice.

In determining the application, the Judge considered that Ms McGregor's request met the information requirements of the Rules and that access to historic divorce files for genealogical purposes was generally considered a legitimate purpose. The Judge was satisfied that no issues of privacy arose as the documents did not contain personal or sensitive information and that the genealogical purposes for access provided good reason to allow Ms McGregor access. The Judge granted Ms McGregor's application, subject to the condition that she confirm in writing that she will not disclose or share the documents or the contents of the documents to those other than members of her family or other than for the stated genealogical purpose for access. Once the Court received confirmation from McGregor that she would abide by this condition, the registry may provide access to the file.

The Judge ordered that Ms McGregor confirm in writing to the Court that she will not disclose or share the documents or the contents of the documents to those other than members of her family or other than for the stated genealogical purpose for access. Once the Court has received confirmation from McGregor that she will abide by this condition, the registry may provide access to the file. It would also be open to Ms McGregor to come to Wellington and view the documents currently held in the Wellington High Court Registry if she wishes to.

Orders