Boyce v Bunce [2015] NSWSC 1924

Boyce v Bunce [2015] NSWSC 1924

The plaintiff's claim for privilege over the documents produced by the attesting witness is dismissed on the basis that, under the rule in Re Fuld, such documents (regarding attestation or execution) are not privileged as against the Court. The defendant's notices to produce are set aside in the interim because,...

Source-derived case information.

Parties
Plaintiff: Philip Leslie Boyce; Defendant: Marguerite Anne Bunce
Jurisdiction
Australia
Judgment Date
17 December 2015
Procedural Posture
Contested Probate Suit / Interlocutory Judgment on Privilege and Notices to Produce
Outcome
Plaintiff's motion for re-privileging dismissed; defendant's notices to produce set aside pending repleading.
Legal Topics
Probate Proceedings, Undue Influence, Testamentary Capacity, Discovery and Privilege, Case Management
Succession Law Equity Civil Procedure Probate Proceedings Undue Influence Testamentary Capacity Discovery and Privilege Case Management

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Summary, issues, holding and outcome

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Parties

Philip Leslie Boyce

Plaintiff

Marguerite Anne Bunce

Defendant

Procedural Posture

Contested Probate Suit / Interlocutory Judgment on Privilege and Notices to Produce

Legal Issues

  1. 1 Whether privilege applies to documents produced by an attesting witness to a will in probate proceedings
  2. 2 Scope and operation of the rule in Re Fuld regarding attesting witnesses' documents and privilege
  3. 3 Whether discovery processes (notices to produce) by the defendant constitute an abuse of process or are premature prior to proper pleading reformulation

Ratio Decidendi

The plaintiff's claim for privilege over the documents produced by the attesting witness is dismissed on the basis that, under the rule in Re Fuld, such documents (regarding attestation or execution) are not privileged as against the Court. The defendant's notices to produce are set aside in the interim because, pending proper reformulation of pleadings and clarification of the real issues in the proceedings, use of notices to produce for discovery/disclosure is premature and, as pursued, constitutes an abuse of process.

Court Disposition

Plaintiff's motion for re-privileging dismissed; defendant's notices to produce set aside pending repleading.

Orders

  • Claim of privilege over documents produced on subpoena by attesting witness inspected by opponent dismissed.
  • Defendant's notices to produce (requiring further written communications) set aside pending reformulation of pleadings.