This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 12 June 2009, amend the High Court Rules. The substantive changes concern access to court documents.
Rule 4 replaces existing subparts 2 and 3 of Part 3 of the High Court Rules with 2 new subparts. New subpart 2 is about access to court documents. The subpart consists of new rules 3.5 to 3.16.
New rule 3.5 defines terms used in this subpart.
New rule 3.6 clarifies that court documents may be accessed only if they are in existence and while they are in the custody or control of the court and until they are transferred to Archives New Zealand.
New rule 3.7 gives every person the right to access the formal court record kept in a registry of a court. The term formal court record is defined in new clause 3.5 and includes judgments, orders, registers, and the rolls of barristers and solicitors. The rule also confers a general right to access court documents relating to grants of administration of deceased estates. However, a Judge may direct that judgments or orders or documents related to grants of administration not be accessed without the permission of the court.
New rule 3.8 gives the parties and their counsel the right to access the court file or any document relating to the proceeding. The parties or their counsel do not have to pay a fee to search and inspect the court file or related document, but copying is subject to any prescribed fee.
New rules 3.9 and 3.10 provide for a simplified form of access to certain documents during the substantive hearing stage of a proceeding. This stage starts with the hearing of the proceeding and ends 20 working days after the court has given the final judgment. In cases where the proceeding is discontinued before the final judgment is given, the period ends with the discontinuance of the proceeding.
The documents that may be accessed under new rule 3.9 are—
any pleading, reference, notice, or application filed in the court:
affidavits, depositions, or other written statements admitted into evidence for the purpose of the hearing:
documents admitted into evidence for the purposes of the hearing:
if any evidence given orally at the shearing or the trial has been transcribed, a transcript of that evidence.
A requester must make the request by letter to the Registrar. The request must identify the requested document and the reasons for the request. The Registrar must promptly give the parties or their counsel a copy of the request. A party who wishes to object must, before the relevant deadline, give the written objection to the Registrar, to the requester, and to the other parties. If a party receives a copy of the request when the hearing is proceeding, the relevant deadline for objecting is 3 pm on the first working day after receipt of the copy of the request. In any other case, the relevant deadline is 3 pm on the third working day after receipt of the copy of the request. New rule 3.10(2) sets out when a party is deemed to receive a copy of a request. If no objection is received by the relevant deadline or if the parties accede to the request before that deadline, the Registrar must promptly give the requester access to the requested document unless the document is subject to a specific restriction directed by a Judge or subject to a general restriction stated in new rule 3.12. If there is an objection or if the document is subject to a restriction, the Registrar must promptly refer the matter to the Judge for determination. The Judge may determine an objection or a request for permission in any manner the Judge considers just.
New rule 3.11 allows a person who is not eligible to access court documents under any of the previous rules to access those documents with the permission of the court, given on an application made under new rule 3.13.
New rule 3.12 clarifies that access is subject to certain restrictions. These restrictions are contained in enactments, court orders, or directions limiting or prohibiting access or publication. Where regulations prescribe fees for accessing court documents, access is subject to the payment of those fees.
The rule also imposes restrictions on proceedings under specified statutes. The listed statutes include family law statutes, mental health legislation, and the Arbitration Act 1996. Documents relating to proceedings under a listed statute may be accessed only by parties or by persons who have obtained the prior permission of the court.
New rules 3.13 to 3.15 provide for applications for the court’s permission to access documents that cannot be accessed under any of the previous rules. Applications are made informally to the Registrar by a letter that identifies the document and the reasons for the application. The application is heard and determined by a Judge or by the Registrar if a Judge so directs. The applicant may be directed to file an interlocutory application or originating application. Applications can be dealt with on the papers or at an oral hearing or in any other manner the Judge or Registrar considers just. The Judge or Registrar may refuse an application or grant it in whole or in part without conditions or subject to any conditions that the Judge or Registrar thinks appropriate. Any decision by a Registrar is subject to review by a Judge.
New rule 3.16 provides for the matters that have to be taken into account when decisions on access are made under these rules. The Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account the following matters:
the orderly and fair administration of justice:
the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, hearings and decisions:
the freedom to seek, receive, and impart information:
whether a document to which the application or request relates is subject to any restriction under new rule 3.12:
any other matter that the Judge, other judicial officer, or Registrar thinks just.
New rules 3.17 to 3.19 re-enact, without change, existing rules 3.12 to 3.14, which comprise subpart 3 of Part 3, relating to orders for the investment of money paid into court. The reason for the re-enactment is simply to enable the new rules on access to court documents to be numbered sequentially without resorting to numbers such as
Rules 5 and 6 make consequential amendments.
Rule 7 is a transitional provision. Any application or appeal pending at the commencement of these rules must be dealt with under the relevant High Court Rules in force before the commencement of these rules.