Re Livingstone v Livingstone - [2015] NZHC 2575

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

D 2171/1921 and

D 200/1947 [2015] NZHC 2575

UNDER Part 3 of the High Court Rules

IN THE MATTER OF

applications for access to the Court files Livingstone v Livingstone D 2171/1921 and Martin v Martin D 200/1947

Hearing: On the papers

Judgment:

22 October 2015

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4 pm on the 22nd day of October 2015

Re Applications to access Court files [2015] NZHC 2575 [22 October 2015]

[1] I had referred to me as Duty Judge two applications to access historic Court files which have been deposited with Archives New Zealand. Both are divorce files and are therefore subject to a standard 100 year restriction on access, pursuant to access authority decisions made under ss 43 and 44 of the Public Records Act 2005.

[2] One of the files presently at issue dates from 1947, the other from 1921. It is safe to say that all the parties directly involved in either will, by now, be dead.

[3] Rule 3.6 of the High Court Rules presently states that the sub-part of those rules dealing with access to court records applies only while the records are in the custody and control of the Court, “until they are transferred to Archives New Zealand”.

[4] This might suggest that there may be something of a lacuna in terms of the rules or principles to be applied in determining issues of access to archived court records. But as I understand it, the practice is that when requests for access are made Archives New Zealand transfers the files back to the court under s 24 of the Public Records Act 2005 and they are thus regarded as, again, being “in the custody or
control of the court” for this limited purpose.1 So the present requests fall to be dealt

with in accordance with the High Court Rules.

The Rules

[5] Those of the rules dealing with access to Court documents at the hearing stage can, for present purposes, be put to one side. Accordingly the requests here must invoke r 3.13, which provides:

3.13Applications for permission to access documents, court file, or formal court record other than at hearing stage

(1) This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.

(2) An application under this rule is made informally to the Registrar by a letter that—

1 See the discussion in the recent Rules Committee paper entitled Consultation on Accessing
Court Documents in Civil and Criminal Proceedings (May 2015) at [73] – [75].

(a) identifies the document, court file, or part of the formal court record that the applicant seeks to access; and

(b) gives the reasons for the application.

(3) The application is heard and determined by a Judge or,…

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.

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Details

Case: [2015] NZHC 2575
Decision Date: 22 October 2015

CaseChat Overview and Summary

The High Court of New Zealand dealt with two applications for access to archived divorce files dating from 1921 and 1947, respectively, deposited with Archives New Zealand. The applicants sought access for family research purposes. The files were subject to a 100-year access restriction under the Public Records Act 2005, and the court had to decide whether the applications should be granted under the High Court Rules. The court considered the nature and purpose of the applications, the protection of confidentiality and privacy interests, the principle of open justice, and the restriction on access under rule 3.12. The court determined that the principle of open justice did not significantly engage with these applications as they did not involve the reporting or commenting on court hearings and decisions. Instead, the court focused on the protection of confidentiality and privacy interests and the freedom of the applicants to seek, receive, and impart information. The court found that the files contained personal and intimate information about the parties, which they would not wish to be made public. The court also considered the issue of whether certain obligations of confidentiality may survive the death of the individuals concerned. Ultimately, the court granted access to the 1921 file in its entirety, as the privacy interests and obligations of confidentiality had lessened over time. The court granted access to the 1947 file, except for the information contained in the "Medical report" envelope, as the doctor/patient confidentiality obligation still existed in those particular circumstances.

Orders