Cranston v Kiernan - [2017] WASCA 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CRANSTON -v- KIERNAN [2017] WASCA 100

CORAM: BUSS P
MURPHY JA
MITCHELL JA

HEARD: 12 APRIL 2017

DELIVERED : 12 APRIL 2017

PUBLISHED : 23 JUNE 2017

FILE NO/S: CACV 60 of 2016

BETWEEN: JOHN WINDSOR CRANSTON
Appellant
AND
LAURENCE JAMES KIERNAN
First Respondent
SARAH ELIZABETH KIERNAN
Second Respondent
EVAN ALEXANDER GEORGE CRANSTON and ROBYN RUTH PURCELL as Executors of the Will of FRANCES ELIZABETH ANNE CRANSTON
Third Respondent
PERTH COLLEGE ANGLICAN GIRLS SCHOOL
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :KIERNAN -v- CRANSTON & PURCELL [2016] WASC 183
File No  :CIV 1385 of 2015

Catchwords:

Practice and procedure - Interlocutory applications in claim for adequate provision under s 6 of the Family Provision Act 1972 (WA) - Appeal against decision dismissing applications by the defendant for medical examination of plaintiff and for discovery - Appeal allowed in part - Master erred in dismissing the defendant's application for medical examination of one of the plaintiffs pursuant to O 28 r 1 of the Rules of the Supreme Court 1971 (WA) where claim for adequate provision made in the context of plaintiff's alleged brain injury and consequential inability to work - In the interests of justice for the plaintiff to be medically examined - Master did not err in dismissing the defendant's application for discovery of documents

Legislation:

Rules of the Supreme Court 1971 (WA), O 28 r 1

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant:     Mr R Nash
First Respondent           :     Ms W Gillan
Second Respondent      :     Ms W Gillan
Third Respondent          :     No appearance
Fourth Respondent        :     No appearance

Solicitors:

Appellant:     Lawfield Legal Practice
First Respondent           :     Kershaw Legal Solicitors
Second Respondent      :     Kershaw Legal Solicitors
Third Respondent          :     No appearance
Fourth Respondent        :     No appearance

Case(s) referred to in judgment(s):

Angliss v Urquhart [2001] NSWCA 441
Crofts v State of Queensland [2001] QSC 220
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101
Kiernan v Cranston & Purcell [2016] WASC 183
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
Wilson v Metaxas [1989] WAR 285

REASONS OF THE COURT: This is an appeal from a decision of Master Sanderson in which the learned master dismissed, in effect, two interlocutory applications brought by the appellant against the first and second respondents: Kiernan v Cranston & Purcell[1] (primary decision). Leave is required. The third and fourth respondents did not take part in the appeal.
[1] Kiernan v Cranston & Purcell [2016] WASC 183.
The primary proceedings concern a claim by the first and second respondents (Mr Kiernan and Ms Kiernan, who are brother and sister) for an order for provision under the

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.

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Details

Case: [2017] WASCA 100
Decision Date: 23 JUNE 2017

CaseChat Overview and Summary

Cranston v Kiernan involves an appeal against the decision to dismiss applications made by the defendant, Kiernan, for a medical examination of the plaintiff, Cranston, and for discovery of documents. The dispute revolves around a claim for adequate provision under section 6 of the Family Provision Act 1972 (WA). The case was heard in the Supreme Court of Western Australia. The central legal issues before the court were whether the Master had correctly dismissed the defendant's application for a medical examination of one of the plaintiffs and the application for discovery of documents.

The court examined the reasoning behind the Master's decision to dismiss the application for a medical examination. It concluded that the Master had erred in this respect. The examination was deemed necessary in the context of the plaintiff's alleged brain injury and its impact on her ability to work. The court found that conducting a medical examination was in the interests of justice for the plaintiff. However, the Master's decision to dismiss the application for discovery of documents was upheld as there was no error identified in that aspect of the decision.

The court allowed the appeal in part, reinstating the defendant's application for a medical examination of the plaintiff. The appeal against the dismissal of the application for discovery of documents was dismissed. The court's decision highlights the importance of medical examinations in cases involving claims for adequate provision, especially when there are significant health-related issues at stake. The final orders of the court reflect the reinstatement of the application for a medical examination, while affirming the Master's decision regarding the discovery of documents.

Orders