Re: Robert Preston Sintes
[2025] NZCA 156
•9 May 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA811/2024 |
| RE | ROBERT PRESTON SINTES |
| Court: | Woolford, Muir and Isac JJ |
Counsel: | Appellant in person |
Judgment: | 9 May 2025 at 11:00 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
B The High Court judgment is set aside.
CThe application to access the divorce files of Mr Charles Bartholomew Sintes is granted. Mr Sintes is also permitted to make copies of documents on file.
REASONS OF THE COURT
(Given by Woolford J)
Mr Robert Sintes is interested in his family history. He applied to the High Court for access to the divorce file of his father Mr Charles Bartholomew Sintes and his second wife Ms Kathleen Sue Sintes (née Laird).
The Court was unable to find this file but found the divorce file of his father and his first wife (his mother) which named Ms Laird as a co‑respondent.
The application was referred to Wilkinson‑Smith J. On the basis that Mr Sintes sought access to his father’s divorce files in order to research his family history, the Judge considered whether access to the divorce file of his father and his first wife should be granted.
Both Mr Sintes’ parents are deceased but it is unknown whether Ms Laird is still alive. Wilkinson‑Smith J therefore refused the application to protect Ms Laird’s confidentiality and privacy interests. The Judge said that unless the Court was provided with evidence that Ms Laird was no longer alive the application for access to the file must be declined.
Mr Sintes now appeals against the refusal of the application. He has a right of appeal because his application was not an interlocutory application in the context of an extant proceeding. On 5 February 2025, Katz J dispensed with the requirement for Mr Sintes to file a case on appeal and in the absence of a respondent directed that the appeal be determined on the papers as requested by Mr Sintes.
The law
Under r 8 of the Senior Courts (Access to Court Documents) Rules 2017 every person has the right to access the formal court record relating to a civil proceeding. However, r 8 is overridden by r 7 which restricts access to all documents (including judgments or orders) relating to proceedings under the Family Proceedings Act 1980 and its predecessors. Access to the divorce files 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”. Mr Sintes therefore has had to apply for access under r 11.
Rule 12 sets out matters to be considered in determining an application under r 11. Of note in this case are “the protection of other confidentiality and privacy interests” and “the freedom to seek, receive, and impart information”. Rule 13 also provides that after the substantive hearing “the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing”.
Rule 13 affects the weight given to matters under r 12. But the enquiry is still a balancing exercise and while greater weight should be given to privacy interests under r 13(c)(ii) for applications made after the substantive hearing, privacy interests are not the only factor or even the determinative factor. McGechan on Procedure suggests that after the hearing it is likely that greater scrutiny will be given to the reasons for seeking access to documents.[1]
[1]Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SCD13.04], citing Cullen Group Ltd v Commissioner of Inland Revenue [2018] NZHC 3238.
The Rules do not require an applicant to establish a particular interest in having access (unlike a predecessor of the Rules)[2] but the Courts are likely to be less sympathetic to applications by people who do not show a “recognisable and legitimate public or private purpose” for seeking access.[3]
Discussion
[2]See BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC) at [6]–[7].
[3]Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [30] and [33], aff’d Schenker AG v Commerce Commission [2013] NZCA 114, [2015] NZAR 1561. See also the discussion at [16] of Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30.
There is no evidence to suggest Ms Laird is still alive or that her privacy interests would be significantly impacted by granting the application. When Ms Laird’s marriage to Mr Sintes’ father ended after nine years in 1979, Ms Laird departed for the United States of America and any contact has been lost with her. If she was still alive she would be 75 years old. Mr Sintes has made efforts to locate her and appears to already know much of the sensitive material that would be contained in the divorce file. At the time of the earlier divorce proceedings between Mr Sintes’ father and his mother, Mr Sintes obtained copies of letters written by his father to Ms Laird which he supplied to his mother’s solicitor for use in the divorce proceeding. It seems to us that Mr Sintes’ interest is personal and reasonable. He is researching his family history for his daughters.
Applications for access to historic divorce files of close family members seem to be routinely granted.[4] Generally the parties are confirmed to be deceased or presumed deceased based on their dates of birth. Of note is Re Stirrup in which Clark J granted an application to access Court files relating to the 1960s divorce of the applicant’s parents even though the applicant’s father could not be located.[5] It was believed Ms Stirrup’s father was deceased but he had left New Zealand many years ago and could not be located. The facts here are quite similar.
[4]See for example Re McGregor [2024] NZHC 2540 and Flood v Flood [2023] NZHC 2649.
[5]Re Stirrup [2020] NZHC 895.
The appeal is allowed. The requirement of the High Court that Mr Sintes provide evidence of Ms Laird’s death is too onerous. We are of the view that sufficient time has passed such that any confidentiality and privacy interests of Ms Laird do not outweigh Mr Sintes’ genuine and reasonable interest in researching his family history.
Result
The appeal is allowed.
The High Court judgment is set aside.
The application to access the divorce files of Mr Charles Bartholomew Sintes is granted. Mr Sintes is also permitted to make copies of documents on file.
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