Haggerty v Sweeten

[2022] NSWSC 1539

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Haggerty v Sweeten [2022] NSWSC 1539

Hearing dates:

28 October 2022

Date of orders:

28 October 2022

Decision date:

28 October 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1)   Dismiss the amended notice of motion filed with leave in court on 28 October 2022.

(2)   Order Elizabeth Howatt pay the plaintiffs' costs of and incidental to the notice of motion as agreed or assessed, with such costs payable forthwith.

Catchwords:

CIVIL PROCEDURE – Subpoenas – Applications to set aside – privacy

CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Re North Coast Transit Pty Limited [2013] NSWSC 1912

Read v Chang (2010) 44 Fam LR 198

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Waind v Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372

Texts Cited:

Practice Note SC CL 6

Category:

Procedural rulings

Parties:

Margaret Haggerty (1st Plaintiff)
Patricia Hume (2nd Plaintiff)
Johnson Francis (3rd Plaintiff)
Benjamin Sweeten (1st Defendant)
Varvara Sellies (2nd Defendant)

Representation:

Counsel:
Mr J Stephenson (Plaintiff)
Mr JP Redmond (Defendant)

Solicitors:
Wilson & Co Commercial and Personal Lawyers
Fahey Rosenblum Lawyers and Mediators

File Number(s):

2022/090030

JUDGMENT EX TEMPORE (REVISED)

1. This is an application, by Amended Notice of Motion filed in court today, to set aside a number of subpoenas directed to four banks and American Express requiring production of bank statements of Elizabeth Howatt (or ‘the applicant’).

2. The applicant’s objection is that production would expose the “private affairs” of her and her late spouse.

Background

3. This is a case between three plaintiffs and two defendants. The plaintiffs seek possession of a property situated at, and known as, Townhouse X, XX Thornton Street, Darling Point, NSW 2027 (‘the property’). This is on the basis that the plaintiffs are the trustees of a testamentary trust created by the will of the late Catherine Brown (also known as Catherine Haggerty). As such, by virtue of being trustees, they say they are entitled to be recorded as the registered proprietors of the property. The defendants occupy the property which the plaintiffs say they are not entitled to do.

4. Put simply, by their defence, the defendants argue that they had entered into a lease agreement with the life tenant of the property, Christopher Brown, prior to his death which allowed them to remain in the property for 3 years. This was in return for them conducting renovations and project managing those renovations to the property. The precise date of the agreement is not particularised in the defence, but it appears to be alleged that it was formed in the first half of 2021. The defendants say there was a change in trustees to the current plaintiffs who have not recognised the existing lease agreement.

5. There is also a cross-claim where, again put simply, the defendants allege that, if they fail in their claim for the right to occupy the property, they should be paid for the expenses they incurred in renovating the property or otherwise working upon it.

6. A number of subpoenas were issued by the plaintiff in August 2022 – to the National Australia Bank, the ANZ Bank, the Commonwealth Bank of Australia, the Westpac Banking Corporation and American Express – seeking financial records for accounts held in the name of, among others, Elizabeth Howatt. Elizabeth Howatt was the spouse of the late Christopher Brown. The records sought production of financial records for the period from 1 January 2021.

7. Given Elizabeth Howatt is a third party, the Practice Note SC CL 6, par 21 requires leave for her to put on a notice of motion. That leave was granted by Davies J on 20 October 2022, at which time the motion was set down for hearing before the Duty Judge on 28 October 2022.

The relevant principles: setting aside subpoenas

8. The power to set aside a subpoena is contained in r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). That rule provides:

33.4 Setting aside or other relief

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under subrule (1) must be made on notice to the issuing party.

(3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

9. When a person objects to the production of material (or access being given to it, if it is) because the disclosure of the material would impact upon their privacy, the approach taken by the Court is that as set out in Waind v Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372 (Waind v Hill). In that case, Moffitt P (at 384) said:

It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of litigation. It is difficult to see why to do that which is “requisite for the purpose of justice” should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters.

So as far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.

10. In order to justify a subpoena as having been issued for a legitimate forensic purpose, it need only be shown that the documents sought are “apparently relevant”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] (‘Blacktown City Council’). Once this is demonstrated, as was stated by Cohen J in Read v Chang (2010) 44 Fam LR 198 at [8] (cited with approval by Black J in Re North Coast Transit Pty Limited [2013] NSWSC 1912 at [8]), any:

[i]nvasion of privacy will be insufficient to warrant a refusal to force disclosure. If the documents are insufficiently relevant or insufficiently likely to effect the ultimate outcome of the proceedings, the invasion of privacy inherent in disclosure and in some cases the inconvenience of deprival of working documents will be regarded as oppressive and disclosure should not be required.

Consideration and disposition

11. The terms of the subpoenas, which are accepted to be largely the same, would require production of the financial records of Elizabeth Howatt in both her personal capacity, as well as her capacity as one of the executors named in the will of the late Christopher Brown (although I note that whether she is an executor may well be contentious).

12. In my view, apparent relevance is demonstrated or may “plausibly be seen to relate to an issue or issues” or to “cast light” on one or more of the following issues (Blacktown City Council at [57]) – namely: (a) the nature and the terms of the lease and any payments that might have been made to pursuant it; (b) in proving (as she has asserted) whether Elizabeth Howatt paid for costs relating to renovating the property or paid for work she arranged: if so, at a minimum, it would tend to deny the defendants' entitlement to claim it; and (c) the fact of those payments may tend to prove (or be some evidence of) the existence of the agreement that the defendants alleged was made with Mr Brown.

13. In those circumstances, there being no other objection to it – such as the terms of it are too vague or oppressive – it should “not be set aside, nor should the inspection of documents produced be refused”: Blacktown City Council at [57].

14. Finally, it was suggested that the Court should provide some restriction to the material because there may be some cross-over with proceedings in the Victorian Supreme Court. However, as each of the plaintiffs have confined or no involvement in those proceedings, there is no reason to think that the implied undertaking is insufficient to deal with this issue, if indeed there is one.

Orders

15. For the above reasons I make the following orders:

1. Dismiss the amended notice of motion filed with leave in court on 28 October 2022.

2. Order Elizabeth Howatt pay the plaintiffs' costs of and incidental to the notice of motion as agreed or assessed, with such costs payable forthwith.

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Amendments

14 November 2022 - Format

Decision last updated: 14 November 2022