Wickens - [2021] NZHC 500

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

NO. D. 431/74

[2021] NZHC 500

APPLICATION BY
MICHELLE WICKENS for access to court

file (in Divorce No D431/74)

On the papers

Judgment:

12 March 2021

JUDGMENT OF MALLON J

Introduction

[1] The applicant requests access to a divorce case file from 1974, in which her father was a co-respondent. She requests this access for the purpose of genealogy research which she is carrying out in her spare time. She is curious as to why her father’s name is on this file. She has identified the Archives New Zealand file and, pursuant to the Court’s processes, the file and the search request have been referred to me.

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. Under r 12 a Judge may grant the request with or without conditions, having considered:

(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.

Re Wickens [2021] NZHC 500 [12 March 2021]

[3]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] The case was a proceeding under the Matrimonial Proceedings Act 1963, the corresponding Act to the Family Proceedings Act 1980. Therefore, a person may not access a court file in relation to divorce matters unless a Judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wickens

Details

AGLC: Wickens [2021] NZHC 500
Case: [2021] NZHC 500
Decision Date: 12 March 2021

CaseChat Overview and Summary

The case of Michelle Wickens involves an application for access to a divorce case file from 1974, in which her father was a co-respondent. The application is made for the purpose of genealogy research, with the applicant seeking to understand why her father's name appears on the file. The matter was heard on the papers and the application was ultimately declined. The legal issues central to the case revolve around the balance between the privacy interests of the individuals named in the file and the applicant's right to access the information for her genealogical research. The Senior Courts (Access to Court Documents) Rules 2017 provide the framework for such applications, with Rule 12 specifically detailing the considerations a judge must undertake, including the orderly and fair administration of justice, the principle of open justice, and the protection of confidentiality and privacy interests.

The court examined precedents such as Re Stirrup and Kelly v Salmons to assess the application's merits. In Re Stirrup, the court granted access to a divorce file where the applicant sought information about her parents' divorce for family research purposes, balancing the passage of time against the privacy interests. In contrast, the court in Kelly v Salmons granted limited access to specific documents necessary for the applicant's legal proceedings. The court in the present case found that the application was distinct from Re Stirrup because the applicant's father was merely a co-respondent and not a principal party in the divorce. Furthermore, the relevance of the information to the applicant's genealogical research seemed less direct compared to the precedents. The court also noted the absence of information about other parties involved in the divorce and whether their privacy interests would be unduly compromised.

The court concluded that, at the moment, the balance of interests favoured the refusal of the application. The significant passage of time was weighed against the privacy interests of the other parties involved, who were the principal players in the divorce proceeding. Additionally, the court was not convinced that the file was directly relevant to the applicant's research, nor did the applicant provide information on whether her parents or other family members were alive and could provide insights into her father's involvement. The court left open the possibility for the applicant to provide further information and reconsider the application. For now, however, the application was declined.

Orders