Petley v Petley Application to Access Court files

[2022] NZHC 66

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

D3336

[2022] NZHC 66

UNDER	the Senior Courts (Access to Court Documents) Rules 2017
IN THE MATTER OF	an application for access to the Court file in Petley v Petley D/3336

Hearing:	On the papers
Judgment:	1 February 2022

JUDGMENT OF ISAC J

[Access to Court documents]

Introduction

[1]    Mr Petley has filed an application for access to a divorce file from 1928 involving his grandparents, Ms Laura Julia Casily Petley and Mr John Petley. He is seeking success to the file for both personal and professional reasons: to learn more about his family history story and as research for a book he is writing on emigration, poverty, family and social history in the United Kingdom and New Zealand from 1800–1950.

Access to Court documents – legal principles

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

Petley v Petley Application to Access Court files [2022] NZHC 65 [1 February 2022]

[3]    The Rules provide that every person has a general right of access to the formal court record in civil proceedings.1 However, the applicant seeks access to all documents on the file which goes beyond the court record. Accordingly, his request must be determined under r 11.

[4]    Relevantly, r 7 restricts access to documents relating to proceedings under the Family Proceedings Act 1980 (FPA) and its predecessors.2 The file in question relates to divorce proceedings brought under the Divorce and Matrimonial Causes Act 1908, a predecessor of the FPA. Therefore, access to the file is restricted and may only be permitted under r 7(1)(a) if the Judge is satisfied there is a good reason for doing so.

[5]    In determining a request for access under r 11, the Judge “must consider the nature of, and the reasons for, the request” and take into account each of the following matters that are relevant:

(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.

1      Senior Courts (Access to Court Documents) Rules 2017, r 8(1).

2      Application for access to the Court files, Kerrison HC Wellington D 331-72, 18 March 2021 at [6].

Discussion

[6]    First, I note that Mr Petley’s application meets the information requirements in the Rules.3 Moreover, I am satisfied from the information provided that Mr Petley is related to the parties in the file.

[7]    In Re (1921) Livingstone v Livingstone, Ellis J considered a similar request in which relatives of parties to divorce litigation in 1921 sought access to the files for the purpose of family research. In determining the request, her Honour weighed three principal factors:4

(a)the protection of the parties’ confidentiality and privacy interests;

(b)the freedom of the applicants to seek, receive, and impart information (although noting that such freedom is limited where the information is private in nature)5; and

(c)the existence of a r [7] restriction (noting that divorce proceedings are inherently personal and private).6

[8]    Having balanced these considerations, 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”.7

[9]    I consider the same balance is applicable in this case. The file is 94 years old and the parties to the proceeding are no longer alive. Further, the 100–year access restriction on the file will expire in 2028.8 These factors significantly lessen any privacy interests in the file. Given the passage of time, the applicant’s freedom to seek, receive and impart information, and the principle of open justice favour disclosure.

3      Rule 11(2).

4      Re (1921) Livingstone v Livingstone [2015] NZHC 2575, [2015] NZAR 1827 at [13].

5 At [37].

6 At [19].

7 At [38].

8      Pursuant to determinations made under ss 43 and 44 of the Public Records Act 2005.

[10]   I am therefore satisfied there is good reason for allowing Mr Petley access to the files.

Result

[11]The application is allowed accordingly.

Isac J