Re Estate Pierobon, Deceased - [2014] NSWSC 387

Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Pierobon, Deceased [2014] NSWSC 387
Hearing dates: 31 March 2014
Decision date: 03 April 2014
Jurisdiction: Equity Division - Probate List
Before: Lindsay J
Decision:
1. Orders for dismissal of a motion for subpoenas to be set aside and claim of client-legal privilege.
2. Order for access to documents produced on subpoena.

Catchwords:
SUCCESSION - Wills probate and administration - Testamentary instruments - "suspicious circumstances rule" - Evidence - Application to set aside subpoenas - Legitimate forensic purpose - application dismissed
EVIDENCE - Facts excluded from proof - On grounds of privilege - Legal profession - Probate - Statements of witnesses to execution of will not privileged. "Rule in Re Fuld" - Claim to privilege dismissed
Legislation Cited: Civil Procedure Act 2005 NSW, s 14
Evidence Act 1995 NSW; s 119;
Uniform Civil Procedure Rules 2005 NSW, r 1.9;
Succession Act 2006, s 8
Cases Cited: Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98
Clocchiatti v Chadwick [2012] NSWSC 1308 at [9]-[14]
Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 at 64-65 [35])
In Re Brock; Jones v Jones (1908) 24 TLR 839 at 840
In re Levy, deceased (No 2) [1957] VR 662 at 665
In re Webster [1974] 1 WLR 1641.
In the Estate of Fuld, Deceased; Hartley v Fuld (Attorney-General intervening) [1965] P 405 at 409F-411B
National Employers' Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 at 381-382
Oakes v Uzzell [1932]P 19
Re McMahon [1955] VLR 173 at 174
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-575
Tobin v Ezekiel (2012) 83 NSWLR 757 at 770 [43]-774 [55]
Tyrrell v Painton [1894] P151 at 157 (and 159)
Texts Cited: GL Certoma, The Law of Succession in NSW (Thomson Reuters, Sydney, 4th ed, 2010) para [6.60], p. 95
Mason and Handler, Succession Law and Practice NSW (Lexis Nexis Butterworths), para [6085]
RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administraiton Law in NSW (LBC, Sydney, 1996), para [40.65], p 295
Category: Interlocutory applications
Parties: Nicolina Clocchiatti
(Plaintiff/Cross Defendant)
Scalabrini Village Limited ACN 000 770 598
(Third Defendant/Cross Claimant)
Representation: Counsel:
D Allen (Plaintiff/Cross Defendant)
B Burke (Third Defendant/Cross Claimant)
Solicitors:
Mitry Lawyers (Plaintiff/Cross Defendant)
Hicksons (Third Defendant/Cross Claimant)

File Number(s): 2012/00051116

Judgment

INTRODUCTION

Before the Court are two notices of motion, one on either side of the record, both filed on 25 March 2014. Both seek orders for subpoenas to be set aside and orders relating to access to documents produced on subpoena.

The principal proceedings are listed before another judge of the Court for a final hearing, with an estimated duration of three days, next week.

They concern the estate of the late John Pierobon, who died on 19 November 2011, aged about 84 years, leaving an estate with an estimated value in the vicinity of $6 million.

The motions have come before me…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Re Estate Pierobon, Deceased and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 387
Decision Date: 03 April 2014

CaseChat Overview and Summary

In the matter of the estate of Pierobon, deceased, the Supreme Court of Queensland was called upon to determine whether subpoenas issued to compel the production of documents and testimony in the context of a will dispute were valid. The applicant sought to set aside the subpoenas on the grounds that they were not issued for a legitimate forensic purpose, and that the evidence sought was subject to legal professional privilege. The case involved a dispute between heirs regarding the validity of a will, with the applicant arguing that the deceased had lacked testamentary capacity at the time of execution.

The court was required to decide whether the subpoenas were properly issued and if the evidence sought was relevant and necessary for the resolution of the dispute. The applicant argued that the subpoenas were overly broad and not limited to matters relevant to the will's validity. Additionally, the applicant claimed that the evidence sought, including statements of witnesses to the will's execution, was protected by legal professional privilege.

The court held that the subpoenas were issued for a legitimate forensic purpose, as the evidence sought was relevant to the determination of the will's validity. The court dismissed the applicant's claim that the evidence was protected by legal professional privilege, finding that the "rule in Re Fuld" applied and that statements of witnesses to the execution of a will were not privileged. The court found that the subpoenas were properly issued and the applicant's application to set them aside was dismissed. The court ordered the applicant to comply with the subpoenas and produce the documents and testimony as required.

Orders