Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698849051011.pdf (New Zealand)
2009/401 Court of Appeal (Access to Court Documents) Rules 2009 Anand Satyanand, Governor-General Order in Council At Wellington this 14th day of December 2009 Present: His Excellency the Governor-General in Council Pursuant to section 51C of the Judicature Act 1908, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and with the concurrence of the Right Hon- ourable the Chief Justice and at least 2 other members of the Rules Committee (of whom at least 1 was a Judge of the High Court), makes the following rules.
Contents Title Commencement Interpretation Application General right of access to formal court record Right of parties to access court file or documents Access to documents during substantive hearing stage Meaning of relevant deadline in rule 7 Page 2 2 2 3 4 4 4 6 1 Court of Appeal (Access to Court Documents) Rules 2009 2009/401 Access to documents, court files, and formal court record in other cases Transfer of requests for prior documents Restrictions on access Applications for permission to access documents, court file, or formal court record other than at hearing stage Giving of notice Hearing of application Decisions on applications under rule 12 Review of decisions by Registrar Matters to be taken into account 6 6 7 9 9 10 10 10 10 Rules Title These rules are the Court of Appeal (Access to Court Docu- ments) Rules 2009.
Commencement These rules come into force on 1 February 2010.
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 appeal includes an application for leave to appeal court means the Court of Appeal court file means a collection of documents that relate to an appeal and are in the custody or control of the court defendant includes an accused person document— (a) means any written material in the custody or control of the court that relates to an appeal, whether or not kept on a court file; and includes documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form; but excludes— (b) (c) r 1 2009/401 Court of Appeal (Access to Court Documents) Rules 2009 r 4 (i) (ii) notes made by or for a Judge for his or her per- sonal use; and 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) (b) (c) a register or index: any published list that gives notice of a hearing: a document that— (i) may be accessed under an enactment other than these rules; or constitutes notice of its content to the public (ii) a judgment, order, or minute of the court, including any record of the reasons given by a Judge (d) interlocutory application has the same meaning as in the High Court Rules Judge means a Judge of the Court of Appeal originating application has the same meaning as in the High Court Rules prior document, in relation to an appeal, means a document originally received by another court or by a tribunal for the purposes of the proceeding to which the appeal relates Registrar means the Registrar of the court and includes any Deputy Registrar of that court working day has the same meaning as in the Court of Appeal (Civil) Rules 2005.
Compare: 1908 No 89 Schedule 2 r 3.5 4 (1) (2) Application These rules apply to documents while they are in the custody or control of the court and until they are transferred to another court or to Archives New Zealand.

These rules do not require any person to prepare a document that is not in existence at the time the document is sought.
Compare: 1908 No 89 Schedule 2 r 3.6 3 r 5 5 (1) Court of Appeal (Access to Court Documents) Rules 2009 2009/401 General right of access to formal court record Subject to rule 11, every person has the right to access the formal court record kept in the registry of the court.

(2) Despite subclause (1), a Judge may direct that judgments or orders not be accessed without the permission of the court.
Compare: 1908 No 89 Schedule 2 r 3.7 6 (1) Right of parties to access court file or documents The parties to an appeal and their counsel may at any time, under the supervision of an officer of the court,— (a) search and inspect the court file or any document relat- ing to the appeal without payment of a fee; and copy any part or parts of the court file or any document relating to the appeal on payment of any prescribed fee.
(2) Despite subclause (1), a record of court proceedings in elec- tronic form may be copied only with the permission of the court.

(b) (3) Despite subclause (1), a Judge may direct that the court file or any document relating to the appeal not be accessed by the parties or their counsel without the permission of the court.
Compare: 1908 No 89 Schedule 2 r 3.8 7 (1) Access to documents during substantive hearing stage This rule applies during the hearing of an appeal (other than an application for leave to appeal) that is heard by the court and until— (a) the close of the 20th working day after the court has given the final judgment on the appeal; or the abandonment of the appeal before the final judgment is given.
(b) (2) During the period to which this rule applies, any person may access any of the following documents relating to the appeal: (a) (b) the case on appeal: affidavits, documents, or depositions admitted into evi- dence for the purposes of the appeal: if any evidence given orally at the appeal has been tran- scribed, a transcript of that evidence.
(c) 4 2009/401 Court of Appeal (Access to Court Documents) Rules 2009 r 7 (3) Despite subclause (2), a Judge may, on his or her initiative or on request, direct that any document, or part of a document, relating to the appeal not be accessed without the permission of a Judge.

(4) A request for access to a document under this rule is made identifies the requested document; and gives the reasons for the request.
informally to the Registrar by letter that— (a) (b) The following provisions apply when a request for access to a document is made under subclause (4): (a) (5) (b) (c) (d) (e) 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 (within the meaning of rule 8), give written notice of the objection to the Registrar, to the person who made the request, and to the other parties or their counsel: on receipt of an objection, the Registrar must promptly refer the objection and the request to a Judge for deter- mination: unless the document is subject to a direction given under subclause (3) or to a restriction stated in rule 11, the Registrar must give the person who made the request access to the document— (i) if the Registrar receives no objection before the expiry of the relevant deadline (within the mean- ing of rule 8); or if the parties or their counsel earlier agree that the person be given access to the document: every request that relates to a document that is subject to a direction given under subclause (3) or to a restric- tion stated in rule 11 is taken to be a request for the per- mission of a Judge, and must be promptly referred to a Judge by the Registrar.
(ii) (6) A Judge may determine an objection referred to the Judge under subclause (5)(c) or a request for permission under sub- clause (3) or (5)(e) in any manner the Judge considers just.

5 Court of Appeal (Access to Court Documents) Rules 2009 2009/401 For the purposes of subclause (2)(b) and (c), admitted into evidence does not include evidence admitted provisionally.
Compare: 1908 No 89 Schedule 2 r 3.9 Meaning of relevant deadline in rule 7 For the purposes of rule 7, where a party or counsel receives a copy of a request given to the party or counsel under that rule, relevant deadline means whichever of the following times is applicable: (a) if the copy of the request is received on a day on which the appeal is proceeding, 3 pm on the first working day after the day on which the copy is received: if the copy of the request is received on any other day, 3 pm on the third working day after the day on which the copy is received.
(b) For the purposes of subclause (1), a person is deemed to re- ceive a request— (a) on the day on which it is emailed, faxed, or handed to the person: on the day after the day on which it is posted to the person.
(b) Compare: 1908 No 89 Schedule 2 r 3.10 Access to documents, court files, and formal court record in other cases If a person is not eligible to access a document, court file, or any part of the formal court record relating to an appeal under any of rules 5, 6, or 7, the person may access the document, court file, or any part of the formal court record with the per- mission of the court, given on an application made under rule 12.
Compare: 1908 No 89 Schedule 2 r 3.11 Transfer of requests for prior documents This rule applies if— (a) a Judge is to determine, but has not yet determined, a request or an objection under rule 7, or an application under rule 12, that relates to a prior document; and r 8 (7) 8 (1) (2) 9 10 (1) 6 2009/401 (b) Court of Appeal (Access to Court Documents) Rules 2009 r 11 the Judge considers that it is more appropriate for the court or tribunal that originally received the prior docu- ment to determine whether the person who made the request or application be given access to the prior docu- ment.
(2) The Judge may direct that the request, objection, or applica- tion, so far as it relates to the prior document, be transferred to that court or tribunal.

(3) When a direction under subclause (2) is given, the Registrar must— (a) (b) advise that court or tribunal of the transfer; and send that court or tribunal copies of the request, appli- cation, objection, or other responses that relate to the prior document.
(4) When that court or tribunal receives advice of the transfer, the request or application for access to the prior document must be treated as a request made in accordance with the rules gov- erning access to documents held by that court or tribunal.
Restrictions on access 11 (1) Any right or permission conferred or given by these rules to access a document, court file, or any part of the formal court record relating to an appeal is subject to— (a) any enactment, court order, or direction limiting or pro- hibiting access or publication; and the payment of any prescribed fees for access.
(b) If the Court of Appeal receives a document in respect of which another court has made an order or direction of the kind de- scribed in subclause (1)(a), then that order or direction applies to the document, or to any copy of the document, while it is in the custody or control of the Court of Appeal as if the order or direction had been made by the Court of Appeal.
(2) (3) Without limiting the generality of subclause (1), a person may access a document of the kind described in subclause (4) only if a Judge permits the person to do so.
The documents are,— (4) 7 r 11 (a) (b) (c) (d) Court of Appeal (Access to Court Documents) Rules 2009 2009/401 (ii) (iii) in the case of an appeal arising out of a criminal pro- ceeding to which section 375A of the Crimes Act 1961 applies,— (i) a written statement by, or a transcript of the evi- dence of, a person who is a complainant or who gives, or is intended to give, propensity evidence: videotaped records or records in any electronic form of interviews with any person who is a com- plainant or who gives, or is intended to give, propensity evidence: photographs or images in any electronic form of any person who is a complainant, or who gives, or is intended to give, propensity evidence: videotaped records or records in any electronic form of interviews with a defendant: a 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 a court: any written statement or 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 a court.
(6) the person is a party to that proceeding; or the court permits the person to do so.
(5) A person may not access a document, court file, or any judg- ment or order, that relates to an appeal arising out of a civil proceeding brought under an enactment specified in subclause (6) unless— (a) (b) The enactments are as follows: (a) Adoption Act 1955: (b) Alcoholism and Drug Addiction Act 1966: (c) (d) (e) (f) (g) (h) Arbitration Act 1996: Care of Children Act 2004: Civil Union Act 2004: Family Proceedings Act 1980: Family Protection Act 1955: Intellectual Disability (Compulsory Care and Rehabili- tation) Act 2003: 8 2009/401 Court of Appeal (Access to Court Documents) Rules 2009 r 13 (i) Marriage Act 1955: (j) Mental Health (Compulsory Assessment and Treat- (k) (l) (m) (n) ment) Act 1992: Property (Relationships) Act 1976: Protection of Personal and Property Rights Act 1988: Status of Children Act 1969: any former provisions corresponding to provisions of any of the Acts mentioned in paragraphs (a) to (m).
Compare: 1908 No 89 Schedule 2 r 3.12; SR 2009/134 r 12(3) 12 (1) Applications for permission to access documents, court file, or formal court record other than at hearing stage This rule applies whenever the permission of the court is ne- cessary under these rules and is sought to access a document, court file, or any part of the formal court record relating to an appeal, except where access may be sought under rule 7.
(2) An application under this rule is made informally to the Regis- trar by a letter that— (a) identifies the document, court file, or part of the formal court record that the applicant seeks to access; and gives the reasons for the application.

(b) (3) On receipt of an application made in accordance with sub- clause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.
Compare: 1908 No 89 Schedule 2 r 3.13(1), (2), (4) 13 (1) (2) Giving of notice The applicant must give notice of the application to any person who, in the opinion of the Judge or Registrar, is adversely affected by the application.

The Judge or Registrar may dispense with the giving of notice under subclause (1) if it would be impracticable to require no- tice to be given.
Compare: 1908 No 89 Schedule 2 r 3.13(5), (6) 9 r 14 14 (1) (2) 15 16 Court of Appeal (Access to Court Documents) Rules 2009 2009/401 Hearing of application The application is heard and determined by a Judge acting alone or, if a Judge directs the Registrar to do so, by the Regis- trar.

The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.
Compare: 1908 No 89 Schedule 2 r 3.13(3), (7) Decisions on applications under rule 12 The Judge or Registrar may refuse an application made under rule 12 or grant it in whole or in part without conditions or subject to any conditions that the Judge or Registrar thinks appropriate.

Compare: 1908 No 89 Schedule 2 r 3.14 Review of decisions by Registrar Any decision by a Registrar under rule 15 is subject to review by a Judge acting alone on the application of the applicant or any person affected.
Compare: 1908 No 89 Schedule 2 r 3.15 17 Matters to be taken into account In determining an application under rule 12, or a request for permission under rule 7, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection: (a) if the appeal relates to a defendant whose trial is yet to take place or who may be retried, the right of the defendant to a fair hearing: the orderly and fair administration of justice: the protection of confidentiality, privacy interests (in- cluding those of children and other vulnerable members of the community), and any privilege held by, or avail- able to, any person: (b) (c) 10 2009/401 Court of Appeal (Access to Court Documents) Rules 2009 Explanatory note (d) (e) (f) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials 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 rule 11: any other matter that the Judge or Registrar thinks just.
(g) Compare: 1908 No 89 Schedule 2 r 3.16; SR 2009/134 r 16(a) Rebecca Kitteridge, 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, which come into force on 1 February 2010, allow docu- ments held by the Court of Appeal to be accessed by parties to ap- peals and by members of the public.
The rules are largely based on the corresponding provisions in the High Court Rules, which came into force on 12 June 2009, together with rules governing access to documents held by courts in the exercise of their criminal jurisdic- tion in respect of indictable offences (Criminal Proceedings (Access to Court Documents) Rules 2009 (SR 2009/134)).

Rule 3 defines terms used in the rules.


Rule 4 limits the application of the rules to the time that they are in the custody or control of the Court of Appeal and until they are transferred to Archives New Zealand.

Rule 5 gives general access to the formal court record kept in the registry of the Court of Appeal.

The term formal court record in- cludes judgments given by the Court.
Rule 6 gives the parties to an appeal and their counsel the right to ac- cess the court file or any document relating to the appeal.

Inspection of the file by the parties or their counsel does not attract a fee.

Rules 7 and 8 provide for a simplified form of access to certain docu- ments during the substantive hearing stage of an appeal.
This stage 11 Explanatory note Court of Appeal (Access to Court Documents) Rules 2009 2009/401 starts with the hearing of the appeal and ends 20 working days after the Court of Appeal has given the final judgment on the appeal.

If an appeal is abandoned, the period ends with the abandonment.
The documents that may be accessed under rule 7 are— • • the case on appeal: affidavits, depositions, or other written statements admitted into evidence for the purpose of the appeal: affidavits, documents, or depositions admitted into evidence for the purposes of the appeal: if any evidence given orally at the hearing of the appeal has been transcribed, a transcript of that evidence.

• • Requests for access are made 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 appeal 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.

If no objection is re- ceived by the relevant deadline or if the parties accede to the request before that deadline, the Registrar must 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 rule 11.
If there is an objection or if the document is subject to a restriction, the Registrar must promptly refer the matter to a Judge for determination.

Rule 9 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 rule 12.
Rule 10 allows a Judge of the Court of Appeal to transfer an access request or application to the court or tribunal that originally received the document concerned for the purposes of the proceeding to which the appeal relates.

Rule 11 concerns restrictions to access.

The rules are subject to en- actments, court orders, or directions limiting or prohibiting access 12 2009/401 Court of Appeal (Access to Court Documents) Rules 2009 Explanatory note 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.

When another court has given a direction limiting access to a document, the direction operates, on receipt of the document by the Court of Appeal, as if the direction had been given by the Court of Appeal.

The rule specifies particular types of documents that may be accessed only with the permission of a Judge.
The restricted types of documents are, in the case of criminal appeals, the same classes of documents as those specified in the Criminal Proceedings (Access to Court Documents) Rules 2009 and, in the case of civil appeals, the same classes of documents specified in the High Court Rules.

Rules 12 to 16 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 interlocu- tory 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 appropri- ate.

Any decision by a Registrar is subject to review by a Judge.

Rule 17 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 appli- cation or request and take into account the following matters: • in the case of a criminal appeal brought before the trial or where the defendant may be retried, the right of the defendant to a fair hearing: the orderly and fair administration of justice: the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the com- munity), and any privilege held by, or available to, any person: the principle of open justice, namely, encouraging fair and ac- curate reporting of, and comment on, hearings and decisions: the freedom to seek, receive, and impart information: • • • • 13 Court of Appeal (Access to Court Documents) Rules 2009 2009/401 • • whether a document to which the application or request relates is subject to any restriction under rule 11: any other matter that the Judge or Registrar thinks just.
Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 17 December 2009.

These rules are administered by the Ministry of Justice.

12 14 Wellington, New Zealand: Published under the authority of the New Zealand Government—2009