Stirrup

[2020] NZHC 895

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

D /232/62

[2020] NZHC 895

IN THE MATTER OF

an application to access court documents under Senior Courts (Access to Court Documents) Rules 2017

RE: STIRRUP

Applicant

Hearing:	On the Papers
Judgment:	4 May 2020

JUDGMENT OF CLARK J

Introduction

[1] Before me is an application to access historic court files that  have been  deposited with Archives New Zealand. The applicant, Ms Barbara Stirrup, applies to access her parents’ 1962-63 divorce record.

[1]                  After 25 years, public records held by every public office must be transferred to Archives New Zealand.1 For the purpose of this request for access, the records have been returned to the Court pursuant to s 24 of the Public Records Act 2005.

Applicable law and principles

[2]                  The application falls for determination under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).2

1      Public Records Act 2005, s 21.

2      Senior Courts (Access to Court Documents) Rules 2017, r 3(1)(b).

Stirrup [2020] NZHC 895 [4 May 2020]

[3]                  A person may apply under r 11 of the Rules to access a document on a court file. A Judge may grant the request with or without conditions, having considered:3

(a)the nature of the request;

(b)the reasons given for the request; and

(c)each of the matters set out in r 12 that are relevant to the request or any objection to the request.

[4]The matters for consideration under r 12 are:

(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.

[5]                  The approach to balancing the r 12 matters is set out in r 13 which makes a distinction as to whether the request is made before, during, or after any substantive hearing. The protection of confidentiality and privacy interests have greater weight after a substantive hearing than would be the case during a substantive hearing.4

3      Rule 12.

4      Rule 13.

[6]                  Whether or not the request for access relates to a document that is subject to any restriction under r 7 is one of the matters to be considered under r 12.5

[7]This file is subject to a restriction under r 7 which provides:

7        Restriction on access in proceedings under certain enactments

(1)A person may not access a document, a court file, or any judgment or order that relates to a proceeding brought under the enactments listed in subclause (2) unless—

(a)the Judge is satisfied that there is good reason for permitting access; or

(b)the person is a party to that proceeding.

(2)The enactments are—

…

(h)     Family Proceedings Act 1980

…

(u)any former provisions corresponding to current provisions of any of the Acts mentioned in this subclause.

[8]                  The 1962-63 court file concerns a divorce proceeding. At that time divorce was dealt with under the Divorce and Matrimonial Causes Act 1928, a precursor to the Family Proceedings Act 1980.6

Analysis

[9]                  The starting point is  the  nature  of,  and  reason  for,  the  request.  While  Ms Stirrup has not explicitly stated her reason for seeking access, I infer from the nature of Ms Stirrup’s request that she is researching her close family. Ms Stirrup states her mother, June Stirrup, passed away in 2014. Ms Stirrup has not known the whereabouts of her father, Robert Stirrup, since he left New Zealand many years ago. Ms Stirrup believes it is possible he too is deceased.

[10]              The information that Ms Stirrup seeks is inherently private, engaging (in terms of the Rules) protection of confidentiality and privacy interests. Balanced against those interests is the effluxion of time and the applicant’s close relationship to those whose confidentiality and privacy interests are otherwise entitled to great weight.

5      Rule 12(g).

6      Re (1921) Livingstone v Livingstone [2015] NZHC 2575, [2015] NZAR 1827 at footnote 2.

Ms Stirrup seeks access to information about her parents. I am satisfied there is good reason for permitting Ms Stirrup to access the files.

[11]              Almost 60 years have passed since her parents’ divorce. The important privacy considerations of the parents diminish somewhat after such a period of time, and in the face of the real and justifiable interest the daughter has in understanding the circumstances of her parents’ separation. One parent is assuredly deceased. The other parent is possibly deceased but, in any event, is unable to be contacted to ascertain his position with regard to the request. Neither parent is in a position to supply to their daughter the information she has a legitimate interest in obtaining.

Disposition

[12]              The application to access the 1962-63 divorce record of June and Robert Stirrup is granted on the condition that Ms Stirrup does not publish the material or distribute it beyond her immediate family.

Karen Clark J