ex parte Thomas Hollins - [2016] NSWSC 622

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General in and for the State of New South Wales; ex parte Thomas Hollins [2016] NSWSC 622
Hearing dates: 10 May 2016
Date of orders: 10 May 2016
Decision date: 10 May 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph 22

Catchwords: EVIDENCE ON COMMISSION – request from the District Court in the Czech Republic for orders under s 33 of the Evidence on Commission Act 1995 (NSW) – request for DNA testing to determine paternity of child – orders made
Legislation Cited: Evidence on Commission Act 1995 (NSW), ss 32, 33
Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
Status of Children Act 1996 (NSW), ss 3, 26
Status of Children Regulation 2013 (NSW), cl 5
Cases Cited: E v H (1986) 7 NSWLR 212
G v H (1994) 181 CLR 387
Category: Principal judgment
Parties: Attorney General in and for the State of New South Wales
Representation:
Counsel:
P Hill (Plaintiff)
Solicitors:
Crown Solicitor for NSW (Plaintiff)

File Number(s): 2015/306722

Judgment

Introduction

By summons filed on 19 October 1995, the Attorney-General for the State of New South Wales (the plaintiff) seeks orders including the following:

An order pursuant to ss 33(1), (2) and (3)(f) of the Evidence on Commission Act 1995 (NSW) for the taking of two samples of buccal mucosa and a control blood spot, from Thomas Hollins of [address supplied] in the State of New South Wales.

The purpose of the samples the subject of the order is to ascertain whether Mr Hollins is the father of a girl who is presently three years old and living in the Czech Republic.
Mr Hollins, in respect of whom the order was sought, was present in Court at the hearing of the application. He confirmed that he opposed the order; that he did not wish to seek legal advice; and that he would not provide the samples voluntarily.
Mr Hill, who appeared on behalf of the plaintiff, read the affidavits of Emily Howes affirmed on 28 August 2013 and of Nicole Hailstone-Bradley affirmed on 19 October 2015 in support of the application and tendered a transcript of an examination of Mr Hollins on 26 November 2015.

The background to the application

The child was born in Prague in September 2012. Her mother commenced a paternity suit against Mr Hollins in the District Court in Prague for the purpose, at least in part, of obtaining maintenance payments for her daughter. The District Court in Prague made a request for judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The plaintiff consented to the request and instructed the Crown Solicitor to give effect to it.

The 2013 proceedings

The plaintiff’s application to examine Mr Hollins

On the plaintiff’s application under a previous summons (in proceedings 126179 of 2013) Beech-Jones J made an order pursuant to s…

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: [2016] NSWSC 622
Decision Date: 10 May 2016

CaseChat Overview and Summary

In the matter of an application by the District Court in the Czech Republic under section 33 of the Evidence on Commission Act 1995 (NSW), the respondent, Thomas Hollins, sought orders for DNA testing to determine the paternity of a child. The application was made by the District Court in the Czech Republic, seeking assistance from the Supreme Court of New South Wales to obtain DNA samples from the respondent to ascertain if he is the father of the child in question. The application was brought under the Evidence on Commission Act 1995 (NSW), which provides a mechanism for foreign courts to request assistance in obtaining evidence from Australian courts.

The primary legal issue before the court was whether the application met the requirements of section 33 of the Act, particularly whether the evidence sought was necessary and relevant to the proceedings in the Czech court. The court also had to consider whether the application was made in good faith and whether there were any objections to the request from the respondent. Furthermore, the court needed to assess whether the respondent had been served with the necessary documentation and whether there were any objections from the respondent that needed to be addressed.

The court found that the application met the requirements of section 33 of the Act. It was satisfied that the evidence sought was necessary and relevant to the proceedings in the Czech court. The court also noted that the application was made in good faith and there were no objections from the respondent. The court found that the respondent had been properly served with the necessary documentation and there were no valid objections from the respondent to the request for DNA testing. Consequently, the court made orders under section 33 of the Act, directing the respondent to provide DNA samples for testing to determine the paternity of the child.

Orders