Wotton v Wotton

This judgment resolves a subpoena dispute.

These proceedings are brought by the plaintiff, Dorothy Wotton, the wife of the late Leon Wotton (the late Mr Wotton), for a family provision order from the late Mr Wotton’s estate pursuant to the Succession Act 2006 (NSW). The defendant, Mr Brett Wotton, is the executor and sole beneficiary of the estate.

On 7 November 2024, the defendant filed a subpoena addressed to his brother, Mr Craig Wotton (the recipient) requiring production of the recipient’s financial records. The recipient lives in the same house as the plaintiff and shares expenses with her. The house is owned by the plaintiff and the estate as equal tenants in common.

The recipient has refused to comply with the subpoena. The Court has before it the defendant’s motion filed on 20 February 2025 to which the recipient is the respondent for an order that the recipient comply with the subpoena.

The recipient’s essential objection to the subpoena is his contention that it is a gross breach of his privacy. For the reasons which follow, the Court has determined that the recipient has demonstrated no legally recognised basis on which he can resist compliance with the subpoena insofar as it is pressed against him. The defendant, through his counsel, did not oppose a limitation that, in the first instance, access to anything produced by the recipient in answer to the subpoena be limited to the defendant’s legal representatives, who would not be permitted to disclose the documents to the defendant or seek to tender them in the proceedings without either the recipient’s agreement or further order of the Court.

The recipient appeared for himself. The defendant was represented by Ms C Coventry of Counsel. While there was no formal appearance for the plaintiff, she was present in Court, apparently having come to Court with the recipient. The Court had the benefit of written submissions from both the recipient and Ms Coventry, supplemented by oral argument.

Insofar as it was pressed, the subpoena sought these documents:

On 15 November 2024, the recipient filed this notice of objection:

The recipient has not complied with the subpoena and, as is apparent from his submissions during the hearing before me, strongly (perhaps to use an understatement) objects to what he submits is a gross violation of his privacy by the subpoena.

The recipient lives in the same house as the plaintiff and they share living expenses.

As I sought to explain to the recipient, the subpoena is unremarkable in the context of family provision proceedings in relation to a third party to the proceedings who lives in the same house as the plaintiff.

Contrary to the recipient’s submission, the documents sought by the subpoena are relevant in the sense identified by the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 per Bell P (as the Chief Justice then was) at [65]. They are relevant because in determining the plaintiff’s application for a family provision order, the Court may consider the matters set out in s 60(2) of the Act, in particular (emphases added):

Unfortunately, the recipient has taken strenuous exception to the suggestion that the subpoena is relevant because he is “cohabiting” with the plaintiff. He has rejected the defendant’s solicitor’s attempts to explain to him that, in the context of the Act, the reference to “cohabiting” is not intended to allege any inappropriate or scandalous conduct, but simply means living together in the same dwelling.

The recipient drew my attention to a number of statutory definitions drawn from family law, or the older matrimonial causes jurisdiction, where either by definition or context it was clear that a reference to cohabitation involved some kind of close interpersonal relationship often involving sexual activity, or that the persons represented themselves to the wider world as a couple. Those references do not assist in the present case. Context is everything.

In the context of s 60(2) of the Act, “cohabiting” is to be given its simplest, literal meaning, which is “to dwell together”. That is its ordinary and natural meaning, reflecting its etymology, from the Latin “cohabitare”, being a collocation of “co” meaning “together” and “habitare” meaning "to dwell”.

To read s 60(2)(e) as being confined only to the financial circumstances of another person with whom a plaintiff is, for the sake of argument, living in a sexual relationship would also be contrary to a purposive construction. The family provision jurisdiction necessarily engages with the infinitely various personal situations in which people find themselves. The evident statutory purpose is to enable the Court to have regard to the widest possible range of matters which could cast light on the circumstances of the plaintiff when determining whether a family provision order should be made and what that order might be. This must extend, for example, to a boarder or adult child who lives in a plaintiff’s house and pays rent, or may have some other legal or moral obligation to provide financial or other support to a plaintiff.

I am fortified in this view by the analysis of Jacobs J in Re Fagan Deceased (1980) 23 SASR 454, with which I respectfully agree. In that case, his Honour had to consider the expression in s 11 of the Family Relationships Act 1975 (SA) of “cohabiting with that person as the husband or wife de facto of that other person”. His Honour concluded (at 464) that “in my judgment the words ‘as husband and wife’ in s.11 do no more than give this secondary meaning to the word ‘cohabit’, the primary meaning of which is simply ‘to dwell with, or live together’” (emphasis added).

Accordingly, on the admitted facts, the recipient is “another person” with whom the plaintiff is “cohabiting” for the purpose of s 60(2)(e).

Insofar as the last paragraph of the recipient’s notice of objection (see [8] above) asserts the documents are “privileged”, I established in exchanges with the recipient that this was not a reference to what lawyers would recognise as legal professional privilege. The privilege to which the recipient referred, as I understood him, was the “privilege” every citizen enjoyed to keep their business private.

The recipient’s repeated assertions of his right to privacy appear to have had two sources. One I can only describe as being an assertion that it was “a matter of principle”. However, whether a “right to privacy” arises at common law, statute or otherwise in this country, that right is subject to lawful intrusions. A properly drawn subpoena is one such lawful intrusion. In relation to subpoenas, some measure of protection is afforded to a person such as the recipient by the parties to the litigation being bound by what is still colloquially known as the “Harman undertaking”: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36.

The other source of the recipient’s concern appeared to be derived from what the Court inferred was his deep suspicion of, and intense antagonism towards, his brother, the defendant. The recipient candidly submitted that he did not trust his brother and did not want him to have access to his (the recipient’s) financial information. In response to those concerns, Ms Coventry did not wish to be heard against my suggestion that access to, and the use of, any documents produced in answer to the subpoena could be governed by a confidentiality regime limiting access to the defendant’s legal representatives until further order or agreement between the recipient and the defendant.

When I told the recipient of the view to which I had come as to the meaning of “cohabiting”, he responded that he would immediately move out of the house and cease to share expenses with, or otherwise financially assist, his elderly mother, the plaintiff. That being so, he submitted, the subpoena had no utility because they would no longer be cohabiting.

However, the subpoena called for documents only up to the date of its issue in November 2024. I accept Ms Coventry’s submission that, even if the recipient carried through with his stated intention, the historical circumstances of his living in the house with the plaintiff and sharing expenses could still be relevant in the requisite sense to the Court’s determination of the plaintiff’s family provision claim.

I should record that at the conclusion of the hearing, the plaintiff asked me from the well of the Court whether I had asked the recipient to leave the house. I assured the plaintiff that I had done no such thing, and whether the recipient left the house and ceased his support of the plaintiff was entirely a matter between them.

Once I had informed the parties that I would make orders requiring the recipient to comply with the subpoena, Ms Coventry sought her client’s costs of the motion. Costs generally follow the event. The defendant was successful on a motion that had been vigorously resisted by the recipient, who submitted that to order him to pay costs was just another example of the injustices which were being visited upon him. The Court accepts Ms Coventry’s submission that costs should follow the event.

Because the Court had sat late to accommodate another matter and the hearing of the motion had continued until after 5pm, I informed the parties that I would publish my reasons to the parties electronically today, together with making orders in chambers.

The Court’s orders are: