Application by Nicholas

[2024] NZHC 338

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

4/1925

[2024] NZHC 338

IN THE MATTER	of Senior Courts (Access to Court Documents) Rules 2017
AND	an application by Margaret Ellen Nicholas

Hearing:	On the papers
Appearances:	Written request by Margaret Ellen Nicholas
Judgment:	28 February 2024

JUDGMENT OF RADICH J

[1]                 Ms Nicholas has applied to access this Court’s file in a 1925 proceeding: Reeve v Reeve (the Reeve proceeding).

[2]                 The primary parties in  that  proceeding  were  the  great  grandparents  of  Ms Nicholas’ husband.

[3]                 Ms Nicholas has made the application for the purpose of researching the history of her husband’s family. All of the children of the parties in the Reeve proceeding – including a co-respondent in the proceeding – are now deceased.

[4]                 The application falls for determination under the Senior Courts (Access to Court Documents) Rules 2017.1    Under r 11, a Judge may grant a request with or

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

Application by Margaret Ellen Nicholas [2024] NZHC 338 [27 February 2024]

without conditions.  The relevant principles for the Court to consider are outlined in  r 12. The matters in that rule, which are relevant in this case, are these:

(a)The orderly and fair administration of 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 … :

(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]                 In r 13, the approach the Court should follow is explained with particular reference to whether the application is made before or after a substantive hearing.

[6]                 In this case, the file is subject to restriction under r 7 because it is concerned with a divorce proceeding under a precursor to the Family Proceedings Act 1980. As a result, the Court is required to consider, not only the matters set out in s 12 (as mentioned above) but, in terms of s 7, it must be satisfied there is good reason for permitting access.

[7]                 In considering the application, I have applied the general approach that is set out in Livingston v Livingston which, although considered under the previous High Court rules relating to access to court documents, remains relevant to the present rules.2 In Livingston, Ellis J considered the need to show a recognisable and legitimate public or private interest, the need for an understanding of the interests that the applicants have in the file, the importance of considering the protection of the parties’ confidentiality and privacy interests – including, as relevant, the privacy interests of other family members which may endure beyond the death of a party to the proceedings in question – and freedom of expression, or the freedom to seek, receive and impart information.

2      Livingston v Livingston [2015] NZHC 2575, generally at [8]–[37].

[8]                 In this case, it is clear that Ms Nicholas has a legitimate interest in the papers that have been sought. Though the divorce would have warranted a degree of privacy at the time, the case was concluded nearly 100 years ago now and the information is sought for inter-family purposes. Accordingly, the privacy factors in r 12 do not stand in the way of the reasonable interest held by Ms Nicholas in having access to the documents.

[9]Under r 17, I am satisfied that there is good reason for permitting access.

[10]             For these reasons, I grant the application. Under s 4 of the 2017 rules, “access” means “to search, inspect, or copy under the supervision of an officer of the court”. I am comfortable with Ms Nicholas having access to the file and making copies of any of the documents on the file for members of her immediate family. I will leave it for Ms Nicholas to make arrangements with the Registrar to visit the Court, view the file and determine whether copies are sought. Alternatively, scanned copies could be provided to Ms Nicholas if that is tenable. Although I do observe that some of the paper is in a delicate state. If photocopies or scanned copies are sought, I direct that Ms Nicholas will need to sign a brief acknowledgment of the fact that the copies made will be for members of her immediate family only.

Radich J