MacGillivray v MacGillivray

[2021] NZHC 780

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

NO. D. 331/72

[2021] NZHC 780

UNDER

the Senior Court (Access to Court Documents) Rules 2017

IN THE MATTER OF

an application for access to the Court files

BETWEEN

WILHELMINA ERNESTINE MACGILLIVRAY

Petitioner

AND

JAMES MORRISON MACGILLIVRAY

Respondent

AND

COLLEEN KERRISON

Applicant

On the Papers
Judgment:	13 April 2021

JUDGMENT OF ISAC J

Introduction

[1]    Ms Kerrison has filed an application for  access to a divorce file involving  Ms Wilhelmina MacGillivray and Mr James MacGillivray (née Berg) as parties. She seeks access to the documents on the Court file as part of the work she is undertaking on her family tree. Ms Kerrison says she would like “to fill in missing information in regard to this marriage, as I am unable to find anything about them.”

[2]    On 18 March 2021 I issued a minute in which I directed Ms Kerrison to file brief submissions explaining her  familial  relationship  to  Mr MacGillivray  and  Ms Berg, and whether she intends to share any information disclosed to her under her

MACGILLIVRAY v MACGILLIVRAY [2021] NZHC 780 [13 April 2021]

application to family members or others (either directly or by way of a summary of the relevant information).

[3]On 28 March Ms Kerrison helpfully provided a response. In it she advised:

(a)Mrs MacGillivray    was   Ms Kerrison’s grandmother’s sister, and therefore her great-aunt.

(b)She does not seek permission to distribute or disseminate the Court documents to any other person, it being a personal family history.

The framework for access to Court documents

[4]    Access to Court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017 (Rules).

[5]    Pursuant to rr 8(1) and (2), every person has a general right to access the “formal Court record” relating to a civil proceeding, and the right to access to any document relating to an application for a grant of administration under the Administration Act 1969.

[6]The “formal Court record” is defined in r 4 as:

formal court record means any of the following kept in a registry of the court:

(a)a register or an index:

(b)a published list that gives notice of a hearing:

(c)a document that—

(i)may be accessed under an enactment other than these rules; or

(ii)constitutes notice of its contents to the public:

(d)a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge:

…

Since the applicant was not a party to the proceeding, and she seeks access to all documents on the Court file, she must apply for access under r 11.

[7]    Also relevant to the Court’s consideration of the application is r 7. This rule is stipulated to be an exception to the general right of access in r 8. It 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; …

(2)The enactments are—

…

(t)     Family Proceedings Act 1980:

(3)This rule overrides rule 8.

[8]    The file in respect to which access is sought relates to an application for divorce which at the time was governed by Part IV of the Matrimonial Proceedings Act 1963. Under r 7(2)(u), r 7 also applies to “any former provisions corresponding to current provisions of any of the Acts mentioned in the sub-clause.” The Matrimonial Proceedings Act 1963 contained provisions relating to divorce that correspond to provisions in the Family Proceedings Act and is thus covered by r 7.1

Discussion

[9]    I am satisfied that there is a good reason for permitting access to the matrimonial proceedings file sought by Ms Kerrison.

[10]   She is a relative of one of the parties in that case, the information on the file is now historical, the parties to the litigation are both dead, and the information is sought for private research Ms Kerrison is undertaking.

1      Re Livingstone v Livingstone [2015] NZHC 2575; [2015] NZAR 1827 at [8], and Rule v Rule

[2020] NZHC 2222 at [7].

[11]   I have also considered the matters identified in r 12(a)–(h), and r 13(a)–(c). The proceedings in issue were concluded 48 years ago. While potentially they may have involved sensitive matters for Mr and Mrs MacGillivray, review of the Court file reveals that the petition  for  divorce  was  advanced  on  the  basis  that  Mr  and  Mrs MacGillivray had separated and continued to live apart for a continuous period of two years. There is nothing in the material which I consider might engage a confidentiality or privacy interest.

[12]   Accordingly, the freedom to seek, receive, and impart information, and the principal of open justice, weigh most heavily in the balance.

[13]I therefore grant Ms Kerrison’s application for access to the Court record.

[14]   Given the limited purpose for which access to the documents is sought by  Ms Kerrison, and her indication that she is not proposing to share the information, directly or indirectly, with others, I also make an order pursuant to r 11(7)(a)(ii) that Ms Kerrison is not to copy, disseminate or provide the Court documents to any other person without the leave of the Court.

[15]   I reserve leave for Ms Kerrison to apply to vary this condition in the future should the need arise.

Isac J