Hartnoll

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

Divorce No 418

[2021] NZHC 1758

APPLICATION BY
RUSSELL HARTNOLL (for access to court file in Divorce No 418

Plaintiff

On the papers

Judgment:

13 July 2021

JUDGMENT OF MALLON J

Introduction

[1] Mr Hartnoll has requested access to a divorce case file from 1942, in which his great-grandparents separated. This is for the purpose of family history research regarding the name of one of the children of his great-grandmother. 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.

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;

(b)the reasons given for the request; and

1 Rule 12.

RE HARTNOLL [2021] NZHC 1758 [13 July 2021]

(c)each of the matters set out in r 12 that are relevant to the request or any objection to the request.

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

Analysis

[6] The purpose given for accessing the file is to discover the name of the adopted child (born around 1923) of the applicant’s great-grandmother. I have read the file and there is no mention of this adopted child. Only her issue from the relationship in question were set out, namely four children born between 1901 and 1908. One of these children died soon after birth, leaving the other three. The applicant refers to these three children as being listed on his great-grandmother’s death certificate as alive at the time.

Result

[7] As the purpose for which the file is sought cannot be met by accessing the file, I decline this application.

Mallon J

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

In the matter of Russell Hartnoll, the applicant sought access to a divorce case file from 1942 in which his great-grandparents separated. This request was made for the purpose of family history research, specifically to identify the name of an adopted child of the applicant’s great-grandmother. The file and search request were referred to Mallon J in the High Court of New Zealand, Wellington Registry, under the Senior Courts (Access to Court Documents) Rules 2017. The court was tasked with determining whether there was good reason to permit access to the file, considering the nature of the request, the reasons provided, and the matters outlined in the Rules.

The legal issues before the court included whether the request for access to the divorce file complied with the Senior Courts (Access to Court Documents) Rules 2017, particularly Rule 7, which restricts access to documents in proceedings under certain enactments, such as the Family Proceedings Act 1980. The court also had to consider the various matters set out in Rule 12, which include the orderly and fair administration of justice, the right of a defendant in a criminal proceeding to a fair trial, and the protection of confidentiality and privacy interests, among others.

Mallon J reviewed the file and found that it did not contain any mention of the adopted child whose name the applicant sought. The file only listed the children born from the relationship in question, with no reference to the adopted child. As the purpose for which the file was sought could not be met, the court declined the application for access. The judge concluded that there was no good reason to permit access to the file under Rule 7, as the file did not contain the information necessary to meet the applicant’s research needs.

The final order of the court was that the application for access to the divorce case file was declined. The court's decision was based on the absence of the sought-after information in the file, and the lack of good reason to permit access as required by the Senior Courts (Access to Court Documents) Rules 2017.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established