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,…
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- [2015] NZHC 2575
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