District Court (Access to Court Documents) Rules 2017

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2017/186

Coat of Arms of New Zealand

District Court (Access to Court Documents) Rules 2017

Patsy Reddy, Governor-General

Order in Council

At Wellington this 7th day of August 2017

Present:
Her Excellency the Governor-General in Council

These rules are made under section 386(1) of the Criminal Procedure Act 2011 and section 228 of the District Court Act 2016—

(a)

on the advice and with the consent of the Executive Council; and

(b)

with the concurrence of the Chief District Court Judge and at least 2 members of the Rules Committee continued under section 155 of the Senior Courts Act 2016, of whom at least 1 is a District Court Judge.

Rules

1 Title

These rules are the District Court (Access to Court Documents) Rules 2017.

2 Commencement

These rules come into force on 1 September 2017.

3 Application

(1)

These rules apply to—

(a)

the District Court; and

(b)

documents while they are in the custody or control of the court.

(2)

These rules do not apply to documents transferred from the court to Archives New Zealand.

(3)

However, if documents are transferred from Archives New Zealand to, or back to, the court these rules apply while the documents are in the custody or control of the court.

(4)

These rules do not apply to documents to which the Family Court Rules 2002 apply.

(5)

These rules do not require a Registrar or any other person to prepare a document that is not in existence at the time a person asks to access it.

4 Interpretation

In these rules, unless the context otherwise requires,—

access means to search, inspect, or copy under the supervision of an officer of the court

civil proceeding

(a)

means any proceeding other than a criminal proceeding; but

(b)

does not include an interlocutory application; and

(c)

does not include a proceeding in which the court or a Judge is exercising a jurisdiction or power to which section 11(3) of the Family Court Act 1980 applies; and

(d)

does not include a proceeding in which the court is exercising jurisdiction under—

(i)

section 15 of the Family Court Act 1980; or

(ii)

section 151 of the Oranga Tamariki Act 1989

court

(a)

means the District Court; and

(b)

includes a court presided over by a judicial officer with authority to exercise the court’s jurisdiction in relation to the matter

court file means a collection of documents in the custody or control of the court that relate to a civil proceeding or a criminal proceeding (including an interlocutory application associated with the proceeding) or an appeal

criminal proceeding—

(a)

means a proceeding under the Criminal Procedure Act 2011; and

(b)

includes—

(i)

all steps in a proceeding within the meaning of paragraph (a); and

(ii)

the sentencing of a defendant under the Sentencing Act 2002; and

(c)

includes a proceeding under—

(i)
(v)

Parts 4 to 6 of the International Crimes and International Criminal Court Act 2000:

(vi)

any other enactment, but only to the extent (if any) determined by a Judge; and

(d)

includes an appeal or an originating application to the court under the Criminal Procedure Act 2011 or the Bail Act 2000

document,—

(a)

in relation to a civil proceeding,—

(i)

means any written material in the custody or control of the court that relates to the proceeding (including any interlocutory application associated with the proceeding), whether or not kept on a court file; and

(ii)

includes documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form; and

(b)

in relation to a criminal proceeding, has the same meaning as in section 5 of the Criminal Procedure Act 2011; and

(c)

in relation to an appeal, means a document in any form that is in the custody or control of the court and that relates to the appeal, whether or not the document is on a court file; but

(d)

in relation to a civil proceeding, a criminal proceeding, or an appeal, does not include—

(i)

notes made by or for a judicial officer for his or her personal use; or

(ii)

any material that relates to the administration of the court

formal court record means any of the following kept in the 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 judicial officer:

(e)

the permanent court record under Part 7 of the Criminal Procedure Rules 2012

interlocutory application

(a)

means any application to the court in a civil proceeding or criminal proceeding, or an intended civil proceeding or intended criminal proceeding,—

(i)

for an order or a direction relating to a matter of procedure; or

(ii)

in the case of a civil proceeding, for some relief ancillary to that claimed in a pleading; and

(b)

includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies

Judge means a District Court Judge

judicial officer means a Judge, a Community Magistrate, or a Justice

originating application has the same meaning as in the District Court Rules 2014

Registrar means a Registrar of the court

substantive hearing means,—

(a)

in relation to a civil proceeding,—

(i)

a hearing (other than the hearing of an interlocutory application) at which issues that will decide the ultimate outcome of the proceedings are determined; and

(ii)

from the start of that hearing until the court finishes delivering its judgment in the proceeding (unless the proceeding is earlier discontinued, in which case until the discontinuance); and

(b)

in relation to a criminal proceeding,—

(i)

from the start of the trial by a judicial officer or a Judge and jury to the end of the trial, whether by acquittal, a finding of guilt, conviction, dismissal, or withdrawal of the charges; and

(ii)

if the defendant pleads or is found guilty, the sentencing hearing from the start of that hearing to when the Judge finishes sentencing or otherwise dealing with the defendant; and

(c)

in relation to an appeal (other than an application for leave to appeal), the hearing of the appeal, from the start of that hearing until the court finishes delivering its judgment in the appeal (unless the appeal is earlier abandoned, in which case until the abandonment).

Qualifications on application of rules

5 Rules do not limit court’s powers

(1)

These rules do not affect the court’s inherent power to control its own proceedings.

(2)

Without limiting subclause (1), the court may, on its own initiative or on request, direct that judgments, orders, documents, or files of any kind may be accessed only with the permission of a Judge.

6 General qualifications on all rights of access under rules

Any right or permission given by or under these rules to access a document, a court file, or any part of the formal court record is subject to—

(a)

any enactment, court order, or direction limiting or prohibiting access or publication; and

(b)

rule 7 (which prohibits access to a document, court file, or judgment or order relating to proceedings brought under specified enactments, except access by a party to those proceedings); and

(c)

rule 8(3) (which prohibits access to specified documents relating to criminal proceedings without the permission of a Judge); and

(d)

the payment of the prescribed fees (if any) for access.

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.

(3)

A person may not search, inspect, or copy a document, a court file, or any judgment or order of the District Court relating to an application under rule 9.51 of the District Court Rules 2014 (which relates to the service of New Zealand subpoenas in Australia) without the leave of a Judge.

(4)

This rule overrides rule 8.

General rights

8 General rights of public
Civil proceedings

(1)

Every person has the right to access the formal court record relating to a civil proceeding.

Criminal proceedings

(2)

Every person has the right to access the following relating to a criminal proceeding, except as provided in subclause (3):

(a)

the permanent court record under Part 7 of the Criminal Procedure Rules 2012:

(b)

any published list providing notice of a hearing:

(c)

any judgment, order, or minute of the court given in the proceeding, including any record of the reasons given by a judicial officer:

(d)

any judicial officer’s sentencing notes.

(3)

Without limiting rule 6(a), a person may access the following documents only if a Judge permits the person to do so:

(a)

any pre-trial judgment, order, or minute in a criminal proceeding, including any bail judgment, order, or minute:

(b)

any document containing evidence of a complainant or of a person who gives or intends to give propensity evidence:

(c)

electronically recorded documents of interviews with a defendant:

(d)

any document that identifies, or enables the identification of, a person if the publication of any matter relating to the person’s identity (such as the person’s name) is forbidden by an enactment or by an order of the court or a Registrar:

(e)

any document received, or any record of anything said, in a proceeding while members of the public are excluded from the proceeding by an enactment or by an order of the court:

(f)

any document containing evidence provisionally admitted into evidence and any document containing evidence that has been ruled inadmissible by the court.

Appeals

(4)

Every person has the right to access the formal court record relating to an appeal.

9 General rights of parties to proceedings
Civil proceedings

(1)

The parties to a civil proceeding and their lawyers may, under the supervision of the Registrar or a person appointed by the Registrar,—

(a)

search and inspect the court file or any document relating to the proceeding without paying a fee; and

(b)

copy any part of the court file or any document relating to the proceeding on paying the prescribed fee (if any).

(2)

The right under subclause (1) may be exercised at any time.

Criminal proceedings

(3)

The parties to a criminal proceeding and the parties’ lawyers have the same rights to search, inspect, and copy documents as do parties to a civil proceeding and their lawyers under subclause (1), subject to the following qualifications:

(a)

a Judge may direct that the prosecutor, defendant, or defendant’s lawyer may not access the court file or any document relating to the criminal proceeding without the permission of the Judge:

(b)

if there is more than 1 defendant in the criminal proceeding, a defendant or the defendant’s lawyer may access the court file or a document relating to the criminal proceeding only with the permission of a Judge.

Appeals

(4)

The parties to an appeal to the District Court have the same rights to search, inspect, and copy documents as do parties to a civil proceeding and their lawyers under subclause (1).

Qualifications on all general rights of parties to proceedings

(5)

The general rights of the parties to civil proceedings, criminal proceedings and appeals, set out in subclauses (1) to (4), are subject to the following qualifications:

(a)

a record of a court proceeding in electronic form that is in the custody or control of the court may be copied only with the permission of a Judge:

(b)

a Judge may direct that the court file or any document relating to the appeal not be accessed by the parties or their lawyers without the permission of a Judge.

(6)

See also rule 6 concerning general qualifications on all rights of access under these rules.

Relationship with rule 7

(7)

This rule overrides rule 7.

10 Exercising general rights

(1)

A person may exercise the rights to access documents under rule 8 or 9 by orally asking the Registrar of the relevant court registry that holds the file for access to 1 or more documents.

(2)

However, if rule 6 or 7 applies to a document, the Registrar may require the person to ask for access in writing, setting out—

(a)

sufficient particulars of the document to enable the Registrar to identify it; and

(b)

the person’s reasons for asking to access the document.

(3)

A corporate party to a civil proceeding, a corporate defendant in a criminal proceeding, or a corporate party to an appeal may exercise the rights of access under rule 8 or 9 through a representative appointed in accordance with section 12 of the Criminal Procedure Act 2011 as if every reference in that section to the Act were a reference to these rules.

Accessing documents not covered by general rights

11 Any person may ask to access documents

(1)

This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

(2)

A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)

identifies the person and gives the person’s address; and

(b)

sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)

gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)

sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

(3)

The Registrar must promptly give a copy of the request to the parties to the relevant proceeding or appeal, or to their lawyers, by hand or electronically.

(4)

A Judge may dispense with service under subclause (3) if it would be impractical to require notice to be served.

(5)

A party who receives a copy of a request and who wants to object to it must give written notice of the objection to the Registrar, setting out the grounds on which the party objects,—

(a)

before 3 pm on the third working day after the day on which the copy is received; or

(b)

if the copy is received on a day on which a hearing relating to the document is proceeding, before 3 pm on the first working day after the day on which the copy is received.

(6)

For the purposes of subclause (5), a person is deemed to receive a copy of a request on the day on which it is sent electronically or handed to the person.

(7)

A Judge may—

(a)

grant a request for access under this rule in whole or in part—

(i)

without conditions; or

(ii)

subject to any conditions that the Judge thinks appropriate; or

(b)

refuse the request; or

(c)

refer the request to a Registrar for determination by that Registrar.

(8)

Without limiting the powers in subclause (6), the Judge may refuse a request for access under this rule solely for the reason that the request does not comply with subclause (2)(a), (b), (c), or (d).

Determining requests for access

12 Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(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:

(h)

any other matter that the Judge thinks appropriate.

13 Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)

before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)

during the substantive hearing, open justice has—

(i)

greater weight than at other stages of the proceeding; and

(ii)

greater weight in relation to documents relied on in the hearing than other documents:

(c)

after the substantive hearing,—

(i)

open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)

the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

14 Procedure for dealing with requests and objections

A Judge may determine a request for access (and any objection received by the Registrar and referred to the Judge under rule 11(4)) in any manner the Judge considers just (including on the papers or at an oral hearing) and may—

(a)

require the person asking for access to—

(i)

file an interlocutory application or originating application:

(ii)

file a written request providing, in detail, the reasons for the request, including the purpose for which the document is sought, and the matters in rule 12 that the person relies on as relevant to the request; or

(b)

require the person asking for access or any other person concerned to give notice of the request to any person who, in the opinion of the Judge, may be adversely affected by the request; or

(c)

dispense with a requirement to give notice under paragraph (b), if the Judge thinks it appropriate.

15 Application of rules to interlocutory and originating applications

Rules 12 to 14 apply to every determination of a request for access to documents, whether under rule 11 or on an interlocutory application or an originating application.

16 Application of rules 12 to 15 to Registrar’s determination

Rules 12 to 15 apply to a Registrar making a determination under rule 11(7)(c)

(a)

as if every reference in those rules to the Judge were a reference to the Registrar; and

(b)

with any other necessary modifications.

17 Review of Registrar’s determination

(1)

The determination of a Registrar made on a referral under rule 11(7)(c) is subject to review by a Judge on the application of the person who made the request for access or any other person affected.

(2)

Rule 2.12 of the District Court Rules 2014 applies as if every reference to a party in that rule were a reference to the person who made the request for access or any other person affected.

18 Proceedings on appeal: transfers of certain requests back to court or tribunal appealed from

(1)

This rule applies to—

(a)

proceedings on appeal from a court or tribunal; and

(b)

any document in the custody or control of the District Court that was originally received by the court or tribunal for the purposes of the proceedings appealed from (a prior document).

(2)

If a person asks to access a prior document under rule 11 and a Judge considers that it is more appropriate for the court or tribunal that originally received the document to determine the request, the Judge may direct that the request and any objection to it be transferred to the court or tribunal for determination.

(3)

When a direction is made under subclause (2), the Registrar must inform the court or tribunal of the transfer and send it copies of the request, the objection, and any other document that the Judge may direct.

(4)

The court or tribunal must treat the request for access to the prior document as a request made under the rules governing access to documents in the custody or control of that court or tribunal.

19 District Court Rules 2014 amended

(1)

This rule amends the District Court Rules 2014.

(2)

Replace rule 3.1 with:

3.1 Location of rules concerning access to court documents

See the District Court (Access to Court Documents) Rules 2017 for the rules regulating the practice and procedure of the court concerning access to court documents in civil proceedings, criminal proceedings, and appeals.

(3)

Michael Webster,
Clerk of the Executive Council.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.

These rules come into force on 1 September 2017. They replace the substantive provisions of Part 3 of the District Court Rules 2014 and Part 6 of the Criminal Procedure Rules 2012, which set out the rules governing access to court documents in the custody or control of the District Court relating to civil proceedings, criminal proceedings, and appeals (court documents).

There is a concern that the existing rules are unduly complex and do not give sufficient guidance about the approach to be taken when assessing requests by the public for access to court documents. These rules therefore—

  • simplify the provisions setting out the court documents that may be accessed, and by whom, and how and when they may be accessed:

  • include more specific guidance for Judges about how they are to balance different considerations when assessing requests for access to documents (rules 12 and 13):

  • align with the Senior Courts (Access to Court Documents) Rules 2017, which come into force at the same time as these rules, with the end result that the rules governing access to court documents in the custody or control of the District Court, High Court, Court of Appeal, and Supreme Court are consistent across all courts.

Under these rules, all substantive decisions on requests for access to documents by members of the public will be made by a Judge, rather than by a Registrar, unless a Judge first considers the request and decides that it is appropriate for the request to be referred to a Registrar for determination under rule 11(7)(c).

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 10 August 2017.

These rules are administered by the Ministry of Justice.