McNamara

[2023] NZHC 1860

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

R25995775

[2023] NZHC 1860

UNDER

the Senior Courts (Access to Court Documents) Rules 2017

IN THE MATTER OF

an application for access to Court file R25995775

BETWEEN

NIGEL McNAMARA

Applicant

On the Papers
Judgment:	17 July 2023

JUDGMENT OF GWYN J

(Access to Court files)

[1]    Nigel McNamara has applied to access the Court file for McNamara v McNamara. The file relates to Enid McNamara and Patrick McNamara, who were Nigel McNamara’s grandparents. The file concerns their divorce. Mr McNamara seeks access to inform himself and Shayne McNamara (the last beneficiary of Patrick McNamara’s will, still living), as to the facts of his grandparents’ divorce.

[2]    The request is considered under the Senior Courts (Access to Court Documents) Rules 2017 (Rules). Rule 12 sets out the matters I must take into account in considering the request. The particularly relevant factors are set out below.

First, is the protection of confidentiality and privacy interests.1 While the file concerns private matters, more than 70 years have passed and the people directly involved are

1      Senior Courts (Access to Court Documents) Rules 2017 [Rules], r 12(d).

RE McNAMARA [2023] NZHC 1860 [17 July 2023]

now dead. The need to protect confidentiality and privacy in this context is therefore reduced.2

[3]    Second, the freedom to seek, receive and impart information.3 The freedom to research the circumstances of one’s own family is important.

[4]    Third, whether the documents on the Court file are subject to any restriction under r 7. Rule 7 restricts access in proceedings under certain enactments unless the Judge is satisfied there is good reason for permitting access. The specific enactments listed in r 7(2) include the Marriage Act 1955. The file in respect to which access is sought relates to an application for divorce which at the time was governed by the Marriage Act 1908. Under r 7(2)(u), r 7 also applies to “any former provisions corresponding to current provisions of any of the Acts mentioned in this sub-clause.” The Marriage Act 1908 contained provisions relating to divorce that correspond to provisions in the Marriage Act 1955 and is thus covered by r 7. However, in my view, as the case is over 70 years old, this is not a factor that strongly points against granting access to the file.

[5]    Weighing up these factors, it is clear in my view that access to the file should be granted to Mr McNamara. The privacy interests, even taking into account the question arising under r 7 referred to above, are minimal given the age of the case. By contrast, the freedom to seek information on one’s family history is a significant one.

[6]    Accordingly, I order that Nigel McNamara and Shayne McNamara are permitted to access and view the file. They may take notes and copies of any documents for their own use.

Gwyn J

2      Re Livingstone v Livingstone [2015] NZHC 2575, [2015] NZAR 1827 at [3]–[4].

3      Rules, r 12(f).