Walsh

[2021] NZHC 1776

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

Divorce No. 690

[2021] NZHC 1776

APPLICATION BY

RUSSELL WALSH (for access to court file in Divorce No. 690)

Plaintiff

On the papers
Judgment:	14 July 2021

JUDGMENT OF MALLON J

Introduction

[1]    Mr Walsh has requested access to a divorce case file from 1943, in which his grandmother and her husband separated. He is looking to find information about how the change in his mother’s surname came about and to understand more about the relationship between his grandmother and her husband. He has identified the Archives New Zealand file and, pursuant to the Court’s processes, the file and search request have been referred to me as Duty Judge.

The law

[2]    The Senior Courts (Access to Court Documents) Rules 2017 provide for access to court documents. 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:1

(a)the nature of the request;

1      Rule 12.

RE WALSH [2021] NZHC 1776 [14 July 2021]

(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.

1. 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; and

(h)any other matter that the Judge thinks appropriate.

[4]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.

[5]    Therefore, a person may not access a court file in relation to historic divorce matters unless a Judge is satisfied that there is good reason for permitting access.2

Analysis

[6]    I have read the file. It provides some information about the relationship between Mr Walsh’s grandmother and her husband, albeit with a focus on the conduct that led to the breakdown of their relationship. This information is of an inherently private nature. Balanced against this is the passage of time and the applicant says he is the only known direct family alive.

[7]    In Re Stirrup, the Court dealt with an application to access the applicant’s parents’ 1962-63 divorce record, which the Judge inferred to be for the purposes of family research.3 The Judge balanced the confidentiality and privacy interests against the time that had passed and the applicant’s relationship to those involved. The application was granted on the basis that the applicant had a legitimate interest in finding out the information from her parents, who were not in a position to supply the information themselves. One was deceased and the other was unable to be contacted and was possibly deceased.

[8]    Here, given the significant amount of time that has passed (around 78 years) and the applicant’s relationship to the grandmother involved in this proceeding, I

2      Kelly v Salmons [2020] NZHC 2933 at [4].

3      Re Stirrup [2020] NZHC 895.

consider there is good reason to allow him to access the file. He has a legitimate interest in finding out about his grandmother and the file provides information about her relationship with her husband, whose surname was taken by Mr Walsh’s grandmother and mother. Mr Walsh does not know of any other direct family who are alive (from whom he could otherwise obtain the information he seeks or who would have an interest in being heard on the application).

Result

[9]This application is granted.

Mallon J