Walker

[2020] NZHC 280

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

9/1933 (AAOY W3298/15 9/1933)

5/1933 (AAOY W3298/15)

31/1934 (W3298/16) [2020] NZHC 280

IN THE MATTER

Of an application to access court file

UNDER

The Senior Courts (Access to Court Files) Rules 2017

AND

FRANCESCA WALKER

Applicant

Hearing:	On the papers
Judgment:	26 February 2020

JUDGMENT OF GRICE J

Summary

[1]                   Ms Franchesca Walker (“the applicant”) has applied for all documents in archives court files in relation to divorce proceedings relating to her paternal great- grandmother, Emere Piriha Karaitiana and her paternal great grandfather, James Te Teira Walker.

[2]                   The first divorce proceeding relates to James Te Teira Walker and his previous wife in 1933 with Emere Piriha Karaitiana named as co-respondent.1 The second and third proceedings in 1933 and 1935 were between Emere Piriha Karaitiana and her previous husband2 with Mr Walker named as a co-respondent in those proceedings.

1      File number 9/1933 (AAOY W3298/15 9/1933).

2      File numbers 31/1934 (W3298/16) and 5/1933 (AAOY W3298/15).

WALKER (ACCESS TO FILES) [2020] NZHC 280, 26 February 2020

[3]                   Following the original application  I  reviewed  further  submissions  from  Ms Walker as to why there were good reasons for allowing access to the full files.

Access to Court documents

[4]                   The Senior Courts (Access to Court Documents) Rules 2017 (“the Rules”)3 govern access to court documents. The Rules apply to any documents in the custody and control of the court.

[5]                   In the case of proceedings for divorce the Court must be satisfied there is a good reason for permitting access unless the person is a party to the proceeding.4

[6]                   The threshold for access is therefore higher than for access to documents in other proceedings. I go on to set out the general provisions.

[7]                   Rule 8 allows a general right to access any court record relating to a civil proceeding. Where a document does not fall under this general right an applicant may submit a request to registry under r 11.

[8]                   Rule 12 outlines the matters to be considered by the Judge when determining a request for access to court documents made under r 11:

(a)whether a document to which the request relates is subject to any restriction under r 7 which lists certain enactments that may prohibit access. Under r 7.1.(a) if an enactment prohibits access, a Judge may still permit access if they are satisfied there is good reason;5 and

(b)any other matter that the Judge thinks appropriate.6

[9]                   Rule 13(c) requires the Judge that in applying r 12 after a substantive hearing, put more weight on open justice has greater weight in relation to documents that have

3      The Senior Courts (Access to Court Files) Rules, r 11(a).

4      The Senior Courts (Access to Court Files) Rules, r 7(1). The proceedings were brought under an enactment which was the predecessor of the Family Proceedings Act 1980 (r 7(2)(h) of the Rules).

5      The Senior Courts (Access to Court Files) Rules, r 11(g).

6      The Senior Courts (Access to Court Files) Rules, r 11(h).

been relied on in a determination than other documents but the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

This case

[10]               The applicant requests these documents for the purposes of research into her family history. This invokes the relevant principle of open justice which includes fair and accurate reporting and comment as well as the freedom to seek, receive and impart information.7 On the other hand the Court must consider 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.

[11]               Ms Walker says none of the parties to the divorce proceedings are still alive. While no death certificates are filed with the application it is reasonable to infer that none of the three parties are still alive based on their ages on the marriage certificates. Today, Mr Walker  would  be  125  years  old,  Mr  Karaitiana  113  years  old  and Ms Karaitiana 107 years old.

[12]               It is unlikely that any children or vulnerable members of the community would be impacted from access being granted. The applicant is a fourth-generation descendant and the events precipitating both divorces is now over half a century ago, and in any event would be unlikely to attract denigration today.

[13]               In this case the principles of open justice and access to information do weigh in favour of granting access to the documents. However, this is a case which in addition requires the Court to be satisfied there is a good reason for allowing access to the files. The initial reason put forward in this case was that Ms Walker just wanted to know more about her family history. That alone would not amount to a good reason to allow access to all documents on the file. However, subsequently Ms Walker elaborated on her reasons:

7      The Senior Courts (Access to Court Files) Rules, r 11(e).

(a)The information covering the divorces and their causes was already public. She provided a copy of the Manawatu Daily Times  article of  6 May 1933 which went into some detail over the events leading to the divorce.8

(b)The relationship of her great grandfather and mother caused great controversy in the area where her family still live.

(c)She wants to learn more about her great grandparents relationship and their relationship with the wider pā.

(d)Her great grandmother died when her grandfather was at primary school.

(e)Her great grandmother passed away before her grandfather was 20 years of age.

(f)Her grandfather passed away three years ago having outlived all but one of his siblings and having spoken little about his past.

(g)Her father knows little of the history and there is no one left to ask.

(h)This is a matter which goes to the genesis of her family.

[14]               In the circumstances, first that the information was made public, secondly that it is such an important part of the family history and thirdly there is no one left to ask I consider provides good reasons to allow access to the files.

Result

[15]Access to the documents as requested is granted.

Grice J

8      This is a vivid article about evidence at a trial following an attack precipitated by the relationship between Ms Walker’s grandparents.