Winter v Winter - [2023] NZHC 2673

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

D/453/47

[2023] NZHC 2673

UNDER the Senior Courts (Access to Court Documents) Rules 2017

IN THE MATTER OF

an application for access to the Court file in John Winter v Maureen Winter & William Lowery (R26090390) William Lowery v Gladys Lowery (R25797051

Hearing: On the papers

Judgment:

25 September 2023

JUDGMENT OF McQUEEN J

[Access to Court documents]

[1] Before me is an application to access historical court files that have been deposited with Archives New Zealand. The applicant, Ms Patricia Lowery, applies to access two divorce files.1 These are:

(a)John Winter v Maureen Winter & William Lowery (R26090390); and

(b)William Lowery v Gladys Lowery (R25797051).

[2] Ms Lowery’s former (and deceased) husband is Mr Kevin Lowery. Ms Lowery’s parents in law were Mr William Lowery and Ms Maureen Winter. However, it is said that Mr Kevin Lowery’s birth certificate records that his father is

1 Under s 21 of the Public Records Act 2005, public records held by every public office must be transferred to Archives New Zealand after 25 years. For the purpose of this request for access, the records have been returned to the Court pursuant to s 24 of that Act.

Winter v Winter & Lowery v Lowery [2023] NZHC 2673 [25 September 2023]

Mr John Winter. Mr William Lowery died in 1975. Ms Maureen Winter died in 1996. Ms Lowery has not been able to find any information regarding the deaths of John Winter and Gladys Lowery, but the historical documentation sought indicates that they (if alive) would both be well over the age of 100.

[3] Ms Lowery seeks access to the above files for family history research purposes. She would like scanned copies of all the documents on the court record. She is willing to abide by any conditions imposed by the court.

Legal framework for access to court documents

[4] Applications for access to court documents are assessed within the framework provided by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). The Rules apply to documents while they are in the custody and control of the court, including documents transferred from Archives New Zealand to the court.2

[5] Rule 8 provides that every person has the right to access the formal court record relating to a civil proceeding. The “formal court record” is defined in r 4 to include “a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge”. It also includes the register of documents filed in the proceeding.3 Thus, these are documents to which Ms Lowery may have access without permission from the Court. To obtain such documents, r 10(1) requires Ms Lowery to ask the Registrar “for access to 1 or more documents”. If necessary, to first understand what documents are available, Ms Lowery can request the register of documents filed in the proceeding.

[6] Ms…

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 Winter v Winter

Details

AGLC: Winter v Winter [2023] NZHC 2673
Case: [2023] NZHC 2673
Decision Date: 25 September 2023

CaseChat Overview and Summary

This case involves an application by Ms Patricia Lowery to access historical court files deposited with Archives New Zealand. The files relate to two divorce proceedings: John Winter v Maureen Winter & William Lowery and William Lowery v Gladys Lowery. The applicants seek access to these files for family history research purposes. The legal framework governing access to court documents is provided by the Senior Courts (Access to Court Documents) Rules 2017. Under these rules, every person has the right to access the formal court record, which includes judgments, orders, minutes of the court, and the register of documents filed in the proceeding. However, Ms Lowery's request for access extends beyond the formal court record to include all documents on the court files. Therefore, it is necessary to consider whether access to these additional documents should be granted under Rule 11 of the Rules. The court must consider all the factors set out in Rule 12, including the stage of the proceeding, the protection of confidentiality and privacy interests, and the principle of open justice. In this case, given the passage of time and the deaths of the parties involved, the court is satisfied that it is appropriate to dispense with the requirement to serve notice of the request on the parties. The court also considers that Ms Lowery should be granted access to the entire court files for the purpose of family history research. The judge directs the Registrar to provide Ms Lowery with scanned copies of the documents contained on the court file for both court files to which she seeks access. The judge does not consider it necessary to impose any conditions.

The court's decision in this case highlights the importance of balancing the principle of open justice with the protection of confidentiality and privacy interests. While the principle of open justice is a fundamental tenet of the legal system, it must be balanced against the need to protect the privacy and confidentiality of individuals. In this case, the court considered the stage of the proceeding, the passage of time, and the deaths of the parties involved in determining whether to grant access to the historical court files. The court's decision also highlights the importance of the Senior Courts (Access to Court Documents) Rules 2017 in governing access to court documents. The Rules provide a framework for assessing applications for access to court documents, including the factors that must be considered in determining whether access should be granted. The court's decision in this case provides guidance on how these Rules should be applied in practice.

Orders