Furesh v Schor - [2013] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FURESH -v- SCHOR [2013] WASCA 231

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 17 APRIL 2013

DELIVERED : 3 OCTOBER 2013

FILE NO/S: CACV 112 of 2012

BETWEEN: MARY FURESH as Administrator of the Intestate Estate of PAUL SLIPCEVICH
First Appellant
MARY FURESH as Beneficiary of the Intestate Estate of PAUL SLIPCEVICH
Second Appellant
AND
GABRIELA MARIA ANGELA SCHOR
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :SCHOR -v- FURESH [No 2] [2012] WASC 305
File No  :CIV 2389 of 2009

Catchwords:

Practice and procedure - Inherent jurisdiction - Order that defendant submit to mouth swab to provide sample for DNA analysis to determine issue of paternity - Whether court has inherent jurisdiction to make such an order

Legislation:

Nil

Result:

Appeal allowed

Category: A

Representation:

Counsel:

First Appellant               :     Dr P R MacMillan & Ms C J Robertson
Second Appellant          :     Dr P R MacMillan & Ms C J Robertson
Respondent:     Mr P J Hannan

Solicitors:

First Appellant               :     Lavan Legal
Second Appellant          :     Lavan Legal
Respondent:     Leach Legal

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

Alder v Khoo [2010] QCA 360
Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Campbell v Biernacki [2009] TASSC 117
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Celanese Canada Inc v Murray Demolition Corp [2006] 2 SCR 189
Columbia Picture Industries Inc v Robinson [1987] Ch 38
Donnelly v Shallard (1936) 53 WN (NSW) 121
Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
Emery v Hobson (1944) 61 WN (NSW) 136
Hallett v Cottam [2007] WASC 147
Holden v Nicholson & Macky [2010] NZHC 351
Kurnell Passenger and Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336
LG v DK [2012] 2 All ER 115
Manor Electronics Ltd v Dickson [1988] RPC 618
McComish v Sharpe [2002] WASC 96
MV v LV (2007) DLR (4th) 549
Nandwani v Nandwani 2013 MBCA 12
R v Jenkins; Ex parte Morrison [1949] VLR 277
R v Martin [1992] 1 NZLR 313
Re Riley [1996] 1 Qd R 209
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1
Ross v Tower Upholstery Ltd [1962] NI 3
S v S [1972] AC 24
Schor v Furesh [No 2] [2012] WASC 305
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218
Simsek v MacPhee [1982] HCA 7; (1982) 148 CLR 636
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Starr v National Coal Board [1977] 1 WLR 63
TK v Australian Red Cross Society (1989) 1 WAR 335
Vidal v Vidal (2005) 248 DLR (4th) 539
Von Doussa v Owens (No 2) (1982) 30 SASR 391
Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631

PULLIN JA: The respondent claims she is the child of the appellant's father and the half‑sister of the appellant. The respondent claims that she is the product of an affair between the appellant's father and a woman in Austria in 1960.
If the respondent is the half‑sister of the appellant, then she would be entitled to share in the distribution of their late father. The appellant denies that the respondent is her half‑sister. The respondent wanted the appellant to give a mouth swab so that a DNA sample could be obtained which, the respondent says, will help prove whether she is or is not the appellant's half‑sister. The appellant refused to give the sample. The master made an order compelling her to consent to an order which would result in a doctor touching her by inserting a swab into the appellant's mouth in order to take a sample of her cells. The question is whether the master had any power to make that order under the inherent jurisdiction of the court.
This case might appear to involve a clash of principles, but upon analysis, it is the form of the master's order which creates the difficulty.
The principles which may appear to clash are as follows:
(a)On the one hand, in the administration of justice, courts determine civil disputes by receiving evidence. The primary rule is that evidence relevant to the issue before the court is admissible and a party can be compelled to discover and make available to the other party for inspection and testing relevant documents and material which are in the possession of the other party. According to the evidence of an expert relied on by the respondent, the appellant's DNA could be compared with a DNA sample provided by the respondent by carrying out 'Kinship Analysis', which may '[support] the two individuals being half‑siblings'. If the evidence of the respondent's expert is accepted, this would be evidence relevant to the issue before the court. An expert for the appellant expresses the opinion that DNA testing and Kinship Analysis could not determine whether the two women had the same biological father. That dispute between the parties would have to be decided at trial.
(b)On the other hand, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their body. The common law accepts that a person has rights of control and self‑determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Section 223 of the Criminal Code (WA) (Code) states that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law. Section 222 of the Code defines what constitutes an assault. It provides that a person who 'touches' or 'applies force of any kind to the person of another', directly or indirectly, without his consent, is said to assault that person and the act is called an assault. In Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218, the plurality said, after referring to the equivalent provisions in the Criminal Code of the Northern Territory:
The corollary of these provisions, which embody the notion that, prima facie, any physical contact … is unlawful, is a right in each person to bodily integrity. That is to say, the right in an individual to choose what occurs with respect to his or her own person (233).
The plurality also referred to Blackstone's Commentaries where the editor wrote:
[T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; each man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.
There are exceptions, including physical contact arising from the exigencies of everyday life - jostling in a street, social contact at parties and the like - and there is implied consent 'by all who move in society and so expose themselves to the risk of bodily contact', or that such encounters fall 'within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life': see JWB and SMB (233).
The order made by the master authorises a person, namely a medical practitioner, to touch the appellant. Such touching does not arise from the exigencies of everyday life and so does not fall within the exception mentioned in JWB and SMB at (233). If the appellant does not consent - and she does not consent - then the touching of the appellant, or any force applied by the doctor while taking the buccal swab, would be an assault and a criminal offence. The appellant cannot be ordered to consent to what would otherwise be an assault.
The master erred in law in concluding he had power under the inherent jurisdiction of the court to authorise an assault on the appellant,

and erred in concluding he had the power to order the appellant to consent to what would otherwise be an assault.

As a result, leave to appeal should be granted, the appeal allowed, and the orders of the master should be set aside.
NEWNES JA: This is an appeal against a decision of Master Sanderson who ordered Ms Furesh (in her capacity as the second defendant/appellant) to submit to a mouth swab for DNA analysis. The purpose of the DNA analysis was to assist in the determination of a paternity issue in an action the respondent (Ms Schor) has commenced against the appellants.
Ms Furesh contends that the master erred in finding that the court had the power to make such an order, or alternatively, that he erred in the exercise of his discretion in making such an order.
In my opinion, the court had no power to make the orders that were made and the orders must be set aside. My reasons are as follows.

Background

Ms Schor has commenced proceedings in which she seeks, among other things, a declaration that she is the daughter of the late Paul Slipcevich and an order that the administrator of his estate recognise her as such for the purposes of the distribution of his estate. The principal issue in the proceedings is whether Ms Schor is Mr Slipcevich's daughter.
It is not in issue that Mr Slipcevich was married on 25 January 1951 and there was one child of the marriage, Ms Furesh, who was born in Croatia on 4 April 1952. Mr Slipcevich, his wife and daughter subsequently migrated to Western Australia and Mr Slipcevich died in Perth on 28 May 2008. Letters of administration were granted to Ms Furesh on 19 December 2008.
In the statement of claim, Ms Schor alleges, in substance, that Mr Slipcevich and Ms Schor's mother had an extra‑marital affair in Austria in the period June to October 1960 and that, on 17 April 1961, Ms Schor was born of that relationship. Ms Schor says that, on 22 July 1965, the District Court Vienna made an order that the paternity of Mr Slipcevich to Ms Schor had been 'ascertained'. In the meantime, in October 1960, Mr Slipcevich had left Austria and, as I have said, he subsequently migrated to Western Australia.

Ms Schor pleads that she is the daughter of Mr Slipcevich and seeks, among other things, a declaration to that effect, an order revoking the grant of letters of administration to Ms Furesh and appointing the Public Trustee in her stead, and an order that the administrator of the estate recognise her claim as a daughter of Mr Slipcevich for the purposes of s 14 of the Administration Act 1903 (WA).
Ms Furesh denies that Ms Schor is the daughter of the deceased. In her defence Ms Furesh pleads, relevantly, that if Ms Schor's mother had an affair in 1960 it was not with Mr Slipcevich and Ms Schor is not the daughter of Mr Slipcevich.
In the action, Ms Schor seeks an order that both she and Ms Furesh undergo DNA testing to determine if they are half‑sisters. That is resisted by Ms Furesh. The issue whether Ms Furesh should be required to submit to DNA testing came before the master for determination.

The decision of the master

The application for DNA testing was made in reliance upon the inherent powers of the court. Ms Schor did not seek to rely on O 28 of the Rules of the Supreme Court 1971 (WA), and indeed she could not do so as Ms Furesh had not been served with the requisite notice under O 28.
The only question before the master, therefore, was whether the order could be made in the court's inherent jurisdiction. The master doubted that it could. However, he considered that the decision in Hallett v Cottam [2007] WASC 147, where Simmonds J had found such a power to exist, was not 'plainly wrong' and that in order to avoid inconsistent decisions at first instance he should follow it [17].
It appears from the master's reasons that he considered such an order would not interfere with Ms Furesh's common law right of autonomy with respect to her body because Ms Furesh would not be physically compelled to provide a sample for DNA analysis. She could, however, properly be ordered to consent to a sample being taken and if she refused to do so she would be liable to the usual sanctions for non‑compliance with an order of the court, including those for contempt of court [14].
The master accordingly made orders, in substance, for the provision by each of Ms Furesh and Ms Schor of a mouth swab for DNA analysis, the analysis of the samples by a laboratory, and the provision of a copy of the laboratory's report of the analysis to each party. It appears that the orders, which are lengthy and complex, are largely derived from pt IIA (wrongly described as 'pt 11E' in par 9 of the orders) of the Family Law Regulations 1984 (Cth).
It is unnecessary to describe the orders in full. Relevantly, they provide, by par 3, that within seven days of the making of the orders Ms Furesh's solicitors are to provide Ms Schor's solicitors with the name of a medical practitioner (described in the orders as 'Ms Furesh's sampler') who shall take a mouth swab from Ms Furesh in accordance with the orders. It is then provided, by par 5, that as soon as reasonably practicable after Ms Furesh's sampler is provided with a sampling kit, but not later than 14 days from the making of the orders:
[Ms Furesh] shall attend upon [Ms Furesh's] sampler and do all things necessary to enable [Ms Furesh's] sampler to take a mouth swab from [Ms Furesh] in accordance with these orders.
The orders go on to provide, by par 8, that Ms Furesh's sampler must not take a bodily sample unless immediately beforehand Ms Furesh has completed an affidavit in accordance with a form of affidavit attached to the orders. That affidavit includes the following:
4.My racial background is (insert details).
5.In the last 2 years:
(a)I have/have not suffered from leukaemia;
(b)I have/have not received a bone marrow transplant.
6.The particulars of the leukaemia/ bone marrow transplant are as follows:
(insert particulars).
7.I have/have not received a transfusion of blood or a blood product within the last 6 months.
8.The particulars of the transfusion of blood or blood product are as follows:
(insert particulars).
9.I consent to:
(a)the taking of a bodily sample/bodily samples from me on (insert date sample is to be taken) at (insert place sample is to be taken) for the purposes of a parentage testing procedure; and
(b)the carrying out of that procedure on that sample.
The requirement in par 5 of the orders that Ms Furesh do all things necessary to enable Ms Furesh's sampler to take a mouth swab clearly includes the swearing of the affidavit, which is a prerequisite to the sampler taking a sample for analysis.
The orders further provide that Dr Jonathan Farris of Bioservices shall then 'conduct a DNA typing procedure in respect of any paternity between the [respondent] and the [appellant]' (par 19) and upon its completion provide to the solicitors for the respective parties a report 'relating to the information obtained as a result of carrying out the parentage testing procedure' (par 20).
I note in passing that whilst much of what is contained in the orders has been derived from the Family Law Regulations, the expression 'parentage testing procedure' is not defined in the orders whereas it is defined in the Family Law Regulations. In the latter it refers to five specified medical procedures. The orders do not refer to those medical procedures. In the orders, the testing to be carried out is simply referred to as 'a DNA typing procedure in respect of any paternity between the [respondent] and the [appellant]'.

The grounds of appeal

There were two grounds of appeal. They were, in essence, that the master:
1.erred in finding that the court had power to order the appellant to submit to DNA testing;
2.erred in law and fact in exercising his discretion to order a DNA test.
They were supplemented by detailed particulars which it is unnecessary to reproduce.

The disposition of the appeal

As the master followed the decision in Hallett in making the orders in question, it is necessary at the outset to say something about that case.
In Hallett, the first plaintiff had sought an order that adequate provision be made for her out of the estate of the testator, pursuant to s 6 of the Inheritance (Family and Dependants' Provision) Act 1972 (WA). Subsequently, an order was made joining the second plaintiff as a claimant in the proceedings. The defendants denied that the second plaintiff was a child of the testator. The defendants sought an order that the second plaintiff submit to a mouth swab for DNA analysis to establish whether the testator was her father. The second plaintiff opposed the application.
Simmonds J did not need to consider whether the court had the power under O 28 to make such an order as, again, the necessary notice under O 28(1) had not been given. His Honour concluded, however, that in its inherent jurisdiction the court had the power to make the order sought. In reaching that conclusion, Simmonds J relied, in particular, on the view of Lord MacDermott in S v S [1972] AC 24, 46 ‑ 47, that the court in its inherent jurisdiction could order a person to submit to a blood test.
In my respectful opinion, however, what was said in that connection by Lord MacDermott in S v S was a minority view and is not a correct statement of the law. In that case, the question was whether the High Court in England had inherent power to order a blood test of an infant to determine the infant's paternity. The House of Lords held unanimously that it did, but different views were expressed as to whether the court could order an unwilling adult who was of full capacity to undergo a blood test.
Lord Reid said:
There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that the English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. [emphasis added]
…
But the position is very different with regard to young children. It is a legal wrong to use constraint to an adult beyond what is authorised by statute or ancient common law powers connected with crime and the like. But it is not and could not be a legal wrong for a parent or person authorised by him to use constraint to his young child provided it is not cruel or excessive. There are differences of opinion as to the age beyond which it is unwise to use constraint, but that cannot apply to infants or young children. So it seems to me to be impossible to deny that a parent can lawfully require that his young child should submit to a blood test. And if the parent can require that, why not the court? There is here no overriding requirement of public policy as there is with an adult (43).
His Lordship concluded that the court should permit a blood test to be taken of a child unless satisfied that it would be against the interests of the child (45).
Lord Hodson similarly distinguished the position of an adult from that of a child. He said:
No-one doubts as far as adults are concerned the law does not permit such an operation [blood tests] to be performed against the wishes of the patient. I quote from an American decision in the case of Bednarik v Bednarik (1940) 16 A 2d 80. The court said, at p 90: 'To subject a person against his will to a blood test is an assault and battery, and clearly an invasion of his personal privacy' … The position of a child is different. Here the court is occupying the position of the parent and must act as the judicial reasonable parent. The parent is not guilty of assault if he physically interferes with his child by way of reasonable restraint or chastisement or for therapeutic reasons (57).
Lord MacDermott said:
There can be no doubt today that samples of blood, when subjected to skilled scientific examination, can often supply helpful, and sometimes cogent, evidence on various issues arising in various types of litigation. But I think it must be accepted that, save where Parliament has otherwise ordained, the High Court has no power to direct that a person who is sui juris is to have a blood test taken against his will (46). (emphasis added)

Lord McDermott, however, went on to say that whilst the court could not compel a person who is sui juris to have a blood test 'taken against his will', it could order a person to submit to a blood test, with sanctions for non‑compliance such as a stay of proceedings or attachment, or the court could treat a refusal to comply as evidence against the non‑compliant party. Such an order, in his Lordship's view, fell within the inherent jurisdiction of the court to make interlocutory orders for the purpose of promoting a fair and satisfactory trial; what his Lordship described as the court's 'ancillary jurisdiction'. His Lordship considered that the essential purpose of that jurisdiction meant that 'it cannot be tied to what is old or outmoded'. He noted, by way of example, that notwithstanding the rules of court were silent on medical examinations, it had (then) recently been held that the court could nevertheless grant a stay of the action if the refusal by a plaintiff of a reasonable request to submit to a medical examination prevented the just determination of the case. There was, in his Lordship's view, no valid distinction in principle between a blood test and a clinical examination, and therefore 'no reason why the [court] should not in a proper case order a party who is sui juris to submit to a blood test' (47).
Lord Guest agreed with Lord Reid, and Lord Morris did not comment on the position of a person who is sui juris.
The distinction drawn by Lord MacDermott between an order that a person have a blood test taken, which the court has no power to make, and an order that a person submit to a blood test, which the court does have the power to make, finds no support in what was said by Lord Reid and Lord Hodson.
The views of Lord Reid and Lord Hodson in S v S were echoed, albeit in a different context, by McHugh J in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's Case), where his Honour said:
It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. To this general thesis, there is an exception: a person cannot consent to the infliction of grievous bodily harm without a 'good reason' [Attorney-General's Reference[No 6 of 1980] [1981] 1 QB 715, 719]. But save in this exceptional case, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self‑determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body (309 ‑ 310).
In Re Riley [1996] 1 Qd R 209, 213, Williams J referred to S v S as authority for the proposition that a court cannot in its inherent jurisdiction compel a person to provide bodily samples for testing, and accordingly concluded that the court had no power to order an adult of full capacity to submit to DNA testing to assist the court in the determination of a question of disputed paternity.
A similar view has been taken in New Zealand: Holden v Nicholson & Macky [2010] NZHC 351 [17] ‑ [22]; and see R v Martin [1992] 1 NZLR 313, 314.
Ms Schor's counsel was unable to refer us to any case in Australia, England or New Zealand in which, in the absence of legislation, it had been held that a power existed to order an adult of full capacity to submit to a DNA test. Reference was made to one case, preceding S v S, in which the judge at first instance in a custody case had held that the court had the inherent power to order the persons claiming to be the parents of an infant to submit to a blood test, but on appeal the decision was set aside on other grounds, without consideration of the court's power to make such an order: R v Jenkins; Ex parte Morrison [1949] VLR 277. We were not referred to, and my own research has not revealed, any other case in which such a power has been found to exist.
In fact, of the Australian states it would seem that only Western Australia and Victoria do not have legislation dealing with testing to determine disputed issues of paternity: see Parentage Act 2004 (ACT), s 34, s 35; Status of Children Act 1996 (NSW), s 26, s 29; Status of Children Act 1978 (Qld), s 11; Status of Children Act 1974 (Tas), s 13, s 14; Status of Children Act (NT), s 13, s 14; Family and Community Services Act 1972 (SA), s 112.
The Family Law Act 1975 (Cth) also makes provision by s 69W for parentage testing for the purposes of that Act. Part IIA of the Family Law Regulations1984 (Cth) contains detailed provisions dealing with the testing procedures that are to be performed and the manner in which the testing is to be carried out. There are similar detailed regulations under the state statutes referred to above. As mentioned above, par 3 to par 23 (inclusive) of the orders made by the master appear to be adapted from pt IIA of the Family Law Regulations. In Western Australia, s 194 ‑ s 201 of the Family Court Act 1997 (WA) deal with parentage testing for the purposes of the Family Court Act. The latter Act obviously has no relevance in the present case.
It is also notable that both s 197 of the Family Court Act and s 69Y of the Family Law Act provide that where a person over the age of 18 years contravenes an order for parentage testing, the person is not liable to any penalty but the court may draw such inferences as appear just in the circumstances. There are comparable provisions in a number of the state acts referred to above.
Some Canadian courts have taken a different approach to the courts in Australia, England or New Zealand in relation to DNA testing in civil cases but, it would appear, not in reliance on the inherent jurisdiction of the court but by reference to rules of court in the jurisdictions concerned.
In my view, the court does not have an inherent power to order a party in civil proceedings to submit to a mouth swab for DNA analysis. In that connection, I do not, with respect, accept the view of Lord MacDermott in S v S that there is no distinction in principle between a medical examination and a procedure for the provision of a bodily sample, in that case, a blood test. I also respectfully do not accept his Lordship's distinction between an order that a person have a blood test taken, which the court has no power to make, and an order that a person submit to a blood test, with sanctions for non-compliance, which the court does have the power to make.
While the inherent powers which a superior court has to control and supervise its proceedings cannot be restricted to defined and closed categories, the powers are not at large but are to be exercised only as necessary for the administration of justice: Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 16 ‑ 17. The limits of the inherent jurisdiction are determined primarily by reference to the purposes served by its exercise, the chief among them being control of the court's procedures, suppression of abuses of its procedures, preventing attempts to thwart its process, and ensuring fairness in its proceedings: Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631, 642.
In Reid v Howard, a question arose as to whether the inherent power of the Supreme Court of New South Wales authorised the court in civil proceedings to compel self‑incriminatory disclosures to be made by a party, the disclosures to be made in a manner which would prevent them being used in any subsequent criminal proceedings against the party. The High Court held that it did not, concluding, among other things, that justice was not served by the ad hoc modification or abrogation of a right of general application, particularly one as fundamental and as important as the privilege against self‑incrimination (17).
It has for a very long time been established at common law that a person has a right of control and self‑determination in respect of his or her body; what is sometimes described as the individual's right to the inviolability of his or her person. It is a substantial matter to encroach upon that fundamental common law right. In S v S, Lord Reid, Lord Guest and Lord Hodson considered that in light of it the court had no inherent power to order a person of full age and capacity to undergo a blood test. In my view, the position is the same in this case. The taking of a mouth swab of a person, like the taking of a blood sample, impinges upon the bodily integrity of the person. To order such a procedure against the person's will would be an important inroad into a fundamental right and justice would not be served by such an inroad in the absence of legislative sanction.

The lack of such a power cannot be overcome by an order, as was made in this case, that the person first swear an affidavit consenting to the mouth swab being taken. An order that a person do something, or permit something to be done, is one thing; an order which requires the person to state that he or she consents to it being done in order that it may be done, is quite another. Ms Furesh had made her position quite clear. She objected to the mouth swab being taken. That objection could not be overcome by ordering her to swear an affidavit stating that she consented to it. The court could never order a party to swear an affidavit containing statements which were, or may be, contrary to the fact.
In my opinion, Hallett was, with respect, wrongly decided and the master erred in making the orders he did. The orders must be set aside. In the light of that conclusion, it is unnecessary to deal with the ground of appeal concerning the exercise of the master's discretion to make such an order.
There is one final matter. In his reasons for decision, the master expressed his agreement with what he said was the decision in Hallett that O 28 did not permit an order for DNA testing to be made. I should note that the master was in error in that regard. In Hallett, Simmonds J found it unnecessary to consider the point because the requisite notice under O 28 had not been given [55]. The ambit of O 28 is a matter for another occasion, if it arises.

Conclusion

I would:
1.allow the appeal;
2.set aside the order made by the master; and
3.dismiss the application for an order that Ms Furesh undergo DNA testing.
MURPHY JA: This is a case in which the plaintiff, in the proceedings below, seeks an order revoking the grant of letters of administration to the defendant with respect to the estate of the deceased. The defendant is the daughter of the union of the deceased and his wife. The plaintiff claims that she is also the daughter of the deceased - born as a result of an extramarital affair which the deceased had with the plaintiff's mother in Austria in 1960. The plaintiff seeks an order that the Public Trustee be

granted letters of administration in place of the defendant, and an order that the administrator of the deceased's estate recognise her claim as a daughter of the deceased for the purposes of s 14 of the Administration Act 1903 (WA).

In the proceedings below, the plaintiff pleaded the facts of the alleged extramarital affair. The defendant disputed the plaintiff's claim, and said that if the plaintiff's mother had an affair in 1960 with a man in Austria of the same name as the deceased, then that man was not, in fact, the deceased.
The plaintiff sought an interlocutory order that the defendant undergo DNA testing using a mouth swab, with a view to seeking to determine whether the plaintiff and the defendant are half‑sisters. The plaintiff's application was resisted by the defendant.
The learned master granted the application: Schor v Furesh [No 2] [2012] WASC 305. The master made a complex set of orders, including orders to the effect that:
(a)the defendant attend on a medical practitioner (of her choice) for the purpose of the medical practitioner taking a mouth swab from her;
(b)the defendant do all things necessary to enable the mouth swab to be taken; and
(c)the medical practitioner must not carry out the mouth swab unless the defendant first provides to the medical practitioner an affidavit stating her consent to the procedure and disclosing certain medical details and history.
The appellant, who is the defendant in the proceedings below, does not wish to undergo DNA testing and appeals against the master's orders. For convenience of exposition, I will continue to refer to the appellant as the 'defendant' and the respondent as the 'plaintiff'.
Section 167 of the Supreme Court Act 1935 (WA) empowers the judges of the Supreme Court to make Rules of Court. The Rules of the Supreme Court 1971 (WA) (RSC), made pursuant to s 167, s 168 and s 170 of the Supreme Court Act, have the force of law: TK v Australian Red Cross Society (1989) 1 WAR 335, 339.
The plaintiff's application before the master had originally referred to O 28 r 1 of the RSC, which deals with the medical examination of a party. However, the plaintiff's counsel in this appeal informed the court that the requisite notice under O 28 r 1(1) had not been given, so that even if O 28 r 1 could, on its proper construction, apply to DNA testing, it did not operate here in any event. As it happened, however, the master in his reasons did address O 28 r 1 and said at [6] that Simmonds J in Hallett v Cottam [2007] WASC 147 had held that the court had no power under O 28 r 1 to order DNA testing. The master said that he agreed with that conclusion, and went on to consider whether the orders could be made in the inherent jurisdiction of the court. The master noted that in Hallett v Cottam, Simmonds J concluded that the court had the inherent power to order DNA testing. The master said, in effect, that he felt obliged to follow that decision and had he not felt so obliged, he would not have made the orders (master's reasons [16] ‑ [17]).
The master, with respect, misunderstood the effect of Simmonds J's decision in Hallett v Cottam. Simmonds J had not held that DNA testing could not be ordered pursuant to O 28 r 1. Rather, his Honour had observed that in that case too, there had been no notice which could have triggered the application of O 28 r 1 and that it was unnecessary to reach any conclusion about whether O 28 r 1 could apply to DNA testing (Hallett v Cottam [52] ‑ [59]). Simmonds J's decision in Hallett v Cottam is discussed in greater detail later in these reasons.
For present purposes, the question of whether any rules of court applied to authorise the court to order such a procedure, and, in particular, whether O 28 r 1 of the RSC authorised the master's orders, do not arise for consideration. Nor is there any relevant statute authorising the order.
The master's order was said to be made in the inherent jurisdiction of the court. The principal question raised in the appeal is whether the master had the power to make the order he did in the exercise of the court's 'inherent jurisdiction' or 'inherent power' (I use the two terms interchangeably for present purposes: cf Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [5]). In Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638, French CJ referred to the court's inherent jurisdiction as the 'inherent power necessary to the effective exercise of the jurisdiction granted' [40].
In Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631, Brennan J said:
The limits of the inherent jurisdiction are determined primarily by reference to the purposes served by its exercise, the chief among them being control of the court's procedure, suppression of abuses of its process, preventing attempts to thwart its process, and ensuring fairness in its proceedings (642).
The power of the court to protect the integrity of its own processes is designed to safeguard the administration of justice and that 'purpose may transcend the interest of any particular party to the litigation': Batistatos v Road and Traffic Authority of New South Wales [12].
The arguments in this appeal did not distinguish between orders in relation to a medical examination, a blood test or DNA testing, save that the plaintiff emphasised that a mouth swab was less invasive physically than a blood sample. However, the taking of a mouth swab for DNA testing is still a direct interference with personal autonomy, and these reasons proceed on the basis that there is no material distinction amongst the three for present purposes. (There was also no evidence that DNA testing carried with it greater social, personal or other ramifications for the individual beyond blood testing.)
Despite early New South Wales authority to the contrary (Donnelly v Shallard (1936) 53 WN (NSW) 121 (Bavin J) and Emery v Hobson (1944) 61 WN (NSW) 136 (Maxwell J)), it has been generally accepted in Australia and England for some considerable time that the court has the inherent power to stay proceedings if a plaintiff refuses a reasonable request for a medical examination. For example, in Starr v National Coal Board [1977] 1 WLR 63, the plaintiff, who was claiming damages against his employers for personal injuries, objected to examination by the specific doctor chosen by the defendants but was willing to be examined by any other doctor of similar qualification and experience. The plaintiff did not give reasons. The employers applied to stay all further proceedings until the plaintiff submitted to an examination by their chosen doctor. The Court of Appeal dismissed an appeal against the primary judge's order granting the stay. Scarman LJ said:
In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades's case, the conduct of the plaintiff in refusing a reasonable request for medical examination is such as to prevent the just determination of the cause …
The decisive factor, therefore, becomes, as I think Lord Denning MR recognised in Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, that of the interests of justice; of the just determination of the particular case. I would add that it can only be the interests of justice that could require one or other of the parties to have to accept an infringement of a fundamental human right cherished by the common law. The plaintiff can only be compelled, albeit indirectly, to an infringement of his personal liberty if justice requires it. Similarly, the defendant can only be compelled to forgo the expert witness of his choice if justice requires it (70 ‑ 71). (emphasis added)
Geoffrey Lane LJ said:
The court clearly has inherent jurisdiction to order a stay when the justice of the case demands such a stay. There are not infrequent occasions when justice demands that the plaintiff should undergo medical examination by a doctor appointed on behalf of the defendants. There are circumstances in which refusal by the plaintiff to undergo such examination should in justice be met by the imposition of a stay. In order to determine what those circumstances are, it is necessary to bear in mind the competing considerations: on the one hand, any medical examination carried out upon him on behalf of the defendants is, as has rightly been said, an invasion of the plaintiff's privacy and is not lightly to be enforced, even indirectly, by a stay of the action; on the other hand, the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination (75). (emphasis added)

Many of the cases in this area were helpfully outlined and discussed by Blow J in Campbell v Biernacki [2009] TASSC 117 [20] ‑ [26].
More recently, albeit in a different context, Gageler J referred to the significance of the court's inherent power to grant a stay of proceedings where 'practical unfairness becomes manifest': Assistant Commissioner Condon v Pompano [178], [212].
The distinction between positively ordering a plaintiff to submit to a medical examination, and directing that the action be stayed unless and until the plaintiff submits to a medical examination, was referred to by Basten JA (Giles JA agreeing), albeit in obiter observations, in Kurnell Passenger and Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336:
Where a plaintiff sues for damages for personal injuries, it is usual for the defendant to require that the plaintiff be examined by its medical practitioners. Rules of court now provide that where the physical or mental condition of a party is relevant to a matter in issue, another party may seek to have the first party examined by its medical practitioners and, where the first party fails to comply with such a reasonable request, the court may dismiss the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ('the UCPR'), Pt 23, rr 23.1 and 23.9. Before such rules were promulgated, the court had no power to order anyone to submit to a medical examination, but could direct that an action be stayed unless the plaintiff submitted to examination by doctors nominated by the defendant: see Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 (Lord Denning MR). The court retains such a power [79]. (emphasis added)
Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, referred to in both Starr v National Coal Board and Kurnell v Randwick, was a case in which an employee brought an action against his employer for injuries sustained at work. Liability was admitted and the only question was as to the assessment of damages. The report from the employee's doctor contained particulars of an injury that had not been made in the statement of claim. The employer applied for a stay of proceedings until the employee submitted to a further medical examination by one of six named doctors. The Court of Appeal granted the stay. Lord Denning MR (Davies & Widgery LJJ agreeing) said:
I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable to do so. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not (71).
Widgery LJ also observed:
I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence, and will thus result in the court being unable to do justice towards the defendants (72 ‑ 73). (emphasis added)
Authorities such as Edmeades v Thames and Starr v National Coal Board do not directly assist the plaintiff in this action because it is the plaintiff here who seeks assistance in the proof of her case by requiring the defendant to undergo DNA testing. This is not a case where a plaintiff makes allegations of fact regarding her physical or medical condition which, in the court's view, the defendant cannot properly investigate and contest without the plaintiff undergoing a medical examination. Rather, the plaintiff is seeking the orders because, she says, she is entitled to present her claim with the benefit of access to this evidence from the defendant. The plaintiff's argument is to the effect that an order requiring the defendant to provide DNA evidence is not materially different from an order in civil litigation that a defendant give discovery or answer interrogatories.
The plaintiff in this appeal says that her contention is supported by certain obiter observations of Lord MacDermott in S v S [1972] AC 24. That case concerned blood testing of a child in a paternity case, but three of their Lordships made obiter observations about whether the court had the inherent power to order an adult of sound mind to undertake a blood test against their will. In the section headed 'Has the High Court jurisdiction to order that a blood test be taken of a person who is sui juris and a party to proceedings before it?', Lord MacDermott said:
There can be no doubt today that samples of blood, when subjected to skilled scientific examination, can often supply helpful, and sometimes cogent, evidence on various issues arising in various types of litigation. But I think it must be accepted that, save where Parliament has otherwise ordained, the High Court has no power to direct that a person who is sui juris is to have a blood test taken against his will. That seems to have been the main reason why, in W v W (1963) [1964] P 67, Cairns J and the Court of Appeal (Willmer, Danckwerts and Diplock LJJ) held that the court had no power to order blood tests for the purpose of determining the paternity of a child. But this lack of power on the part of the court to enforce its order physically without consent does not mean that the question under discussion must be answered in the negative; for much of the jurisdiction of the High Court can only be made effective by indirect means - such as a stay of proceedings, attachment or the treatment of a refusal to comply as evidence against the disobedient party. This is very much the case in one branch of the jurisdiction of the High Court, namely, its inherent jurisdiction to make interlocutory orders for the purpose of promoting a fair and satisfactory trial. I do not think there is now any question about the existence of this jurisdiction, which I shall refer to as the 'ancillary jurisdiction'. It may be procedural in character, but it is much more than that. It is jurisdiction which confers power, in the exercise of a judicial discretion, to prepare the way by suitable orders or directions for a just and proper trial of the issues joined between the parties. … For example, the increasing number of claims which put in issue the bodily condition of a party have in recent years produced what is now a very common demand by defendants, namely, that the claimant shall submit to a medical examination. There is nothing about this in the rules of court; but the jurisdiction of the High Court to order such an examination cannot, in my view, be questioned in this day and age. See, for a recent example, Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 …
See also the decision of the Court of Appeal in Northern Ireland in Ross v Tower Upholstery Ltd [1962] NI 3.
If such be the character of this ancillary jurisdiction, I know of no reason why the High Court should not in a proper case order a party who is sui juris to submit to a blood test. The probative value of such a test may vary according to circumstances and the nature of the material issue; and the relief sought is only to be granted in the exercise of a judicial discretion. But today there can be no valid distinction in principle between a blood test and a clinical examination, and no doubt that one as well as the other may be a powerful factor in determining the truth. In my opinion, this jurisdiction exists and applies to blood tests. I would therefore answer this question in the affirmative (46 ‑ 47). (emphasis added)
'Attachment', to which Lord MacDermott referred, was the traditional sanction for failing to do that which was ordered, whereas committal was the remedy for breach of an order to abstain from doing something: see generally Von Doussa v Owens (No 2) (1982) 30 SASR 391, 395, 400, 403.
The two other members of the House of Lords in S v S who referred to the power of the court to order blood tests against an adult party, Lords Reid and Hodson, emphasised that the law ordinarily protects the individual against interference with his or her personal liberty. Lord Reid said:
There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d'état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions. It is true that the matter is regarded differently in the United States. We were referred to a number of state enactments authorising the courts to order adults to submit to blood tests. They may feel that this is safe because of their geographical position, size, power or resources or because they have a written constitution. But here Parliament has clearly endorsed our view by the provision of section 21(1) of the Act of 1969.
But the position is very different with regard to young children. It is a legal wrong to use constraint to an adult beyond what is authorised by statute or ancient common law powers connected with crime and the like. But it is not and could not be a legal wrong for a parent or person authorised by him to use constraint to his young child provided it is not cruel or excessive. There are differences of opinion as to the age beyond which it is unwise to use constraint, but that cannot apply to infants or young children. So it seems to me to be impossible to deny that a parent can lawfully require that his young child should submit to a blood test. And if the parent can require that, why not the court? There is here no overriding requirement of public policy as there is with an adult (43).
Lord Hodson said, with reference to whether adults could be ordered to undergo a blood test (57):
No one doubts that so far as adults are concerned the law does not permit such an operation to be performed against the wishes of the patient. I quote from an American decision in the case of Bednarik v Bednarik (1940) 16 A 2d 80. The court said, at p 90: 'To subject a person against his will to a blood test is an assault and battery, and clearly an invasion of his personal privacy.' The Court of Appeal in this country reached a like conclusion in W v W (1963) [1964] p 67.
In relation to Lord MacDermott's observations in S v S, although his Lordship referred to a 'party' in the last paragraph quoted in [76] above, it is to be noted that in each of Edmeades v Thames and Ross v Tower Upholstery Ltd [1962] NI 3, relied upon by Lord MacDermott, it was the plaintiff who sought to have his case tried and determined without submitting to a medical examination.
It is also to be noted that Lord MacDermott in S v S stated, in effect, that the court could not, in its inherent jurisdiction, make an order requiring an adult party, against their will, to undergo a blood test. However, his Lordship concluded that a party could be ordered to 'submit' to a blood test, ie, to consent to a blood test. The distinction between the two, ie, between an order directly authorising something to be done to a party, and an order framed in terms of requiring a party to consent to something being done, has been remarked on in the 'search order' cases referred to below.
The idea that a party could be compelled to consent to interference with his or her traditional common law rights was the subject of consideration by Lord Denning MR in Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162:
Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, 'Get out'. That was established in the leading case of Entick v Carrington (1765) 2 Wils KB 275. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs' solicitors or anyone else to enter the defendants' premises against his will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the defendants. The plaintiffs must get the defendants' permission. But it does do this: it brings pressure on the defendants to give permission. It does more. It actually orders him to give permission - with, I suppose, the result that if he does not give permission, he is guilty of contempt of court.
This may seem to be a search warrant in disguise. But it was fully considered in the House of Lords 150 years ago and held to be legitimate. The case is United Company of Merchants of England, Trading to the East Indies v Kynaston (1821) 3 Bli (OS) 153. Lord Redesdale said, at pp 163‑164:
The arguments urged for the appellants at the Bar are founded upon the supposition, that the court has directed a forcible inspection. This is an erroneous view of the case. The order is to permit; and if the East India Company should refuse to permit inspection, they will be guilty of a contempt of the court … It is an order operating on the person requiring the defendants to permit inspection, not giving authority of force, or to break open the doors of their warehouse.
That case was not, however, concerned with papers or things. It was only as to the value of a warehouse; and that could not be obtained without an inspection. But the distinction drawn by Lord Redesdale affords ground for thinking that there is jurisdiction to make an order that the defendant 'do permit' when it is necessary in the interests of justice. …
If the defendants refuse permission to enter or to inspect, the plaintiffs must not force their way in. They must accept the refusal, and bring it to the notice of the court afterwards, if need be on an application to commit.
You might think that with all these safeguards against abuse, it would be of little use to make such an order. But it can be effective in this way. It serves to tell the defendants that, on the evidence put before it, the court is of opinion that they ought to permit inspection - nay, it orders them to permit - and that they refuse at their peril. It puts them in peril not only of proceedings for contempt, but also of adverse inferences being drawn against them; so much so that their own solicitor may often advise them to comply. We are told that in two at least of the cases such an order has been effective. We are prepared, therefore, to sanction its continuance, but only in an extreme case where there is grave danger of property being smuggled away or of vital evidence being destroyed (165 ‑ 167). (emphasis added)
Ormrod LJ said:
I agree with all that Lord Denning MR has said. The proposed order is at the extremity of this court's powers. Such orders, therefore, will rarely be made, and only when there is no alternative way of ensuring that justice is done to the applicant.
There are three essential pre‑conditions for the making of such an order, in my judgment. First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.
The form of the order makes it plain that the court is not ordering or granting anything equivalent to a search warrant. The order is an order on the defendant in personam to permit inspection (167). (emphasis added)
In Australia, the Anton Piller order has been described as a facet of the inherent power of the court to ensure that justice may be done between the parties to the litigation in the context of preserving the subject matter of the proceedings: Simsek v MacPhee [1982] HCA 7; (1982) 148 CLR 636. There, Stephen J said (640 ‑ 641):
There is no doubt that our courts have wide inherent powers to ensure that justice is not denied to those who litigate before them: Dixon CJ observed in argument in Tait v The Queen that he had never had any doubt 'that the incidental power of the Court can preserve any subject matter, human or not, pending a decision'. My unreported decision in Australian Building Construction Employees' and Builders' Labourers' Federation v Victoria and Winneke and the further cases there cited as well as the case of Beck v Value Capital Ltd all provide recent instances of other facets of the inherent power of courts to ensure that justice may be done between parties, as does the making of what have come to be called 'Anton Piller' orders - see Anton Piller KG v Manufacturing Processes Ltd. However such inherent power is not to be exercised as of course - see especially per Ormrod LJ in Anton Piller.
In Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [116], Kirby J made observations to similar effect. See also the observations of the plurality at [25] ‑ [26] and [41] ‑ [44] with respect to Mareva orders in the context of the court's inherent power to protect the integrity of its processes.
The distinction between an order requiring a person to permit inspection of their premises under pain of contempt of court if they refuse, and an order which directly orders entry, might seem a fine distinction. In Celanese Canada Inc v Murray Demolition Corp [2006] 2 SCR 189, the Supreme Court of Canada said of Anton Piller orders:
Unlike a search warrant they do not authorize forcible entry, but expose the target to contempt proceedings unless permission to enter is given. To the ordinary citizen faced on his or her own doorstep with an Anton Piller order this may be seen as a distinction without a meaningful difference [28].
Nevertheless, its permissive element is vital to the integrity of such an order. In Manor Electronics Ltd v Dickson [1988] RPC 618, Scott J discharged an order purportedly providing that the plaintiff 'be entitled to enter' the defendant's premises. Echoing the words of Ormrod LJ in Anton Piller, such an order has been described as being 'at the very limit of the in personam jurisdiction' by Scott J in Columbia Picture Industries Inc v Robinson [1987] Ch 38, 73.
We were not referred to any decision in Australia, England or New Zealand in which the court, in the exercise of its inherent power, has directed a defendant to 'submit' to a blood test, DNA test, or other medical procedure or examination for the purpose of providing evidence sought by the plaintiff which might assist the plaintiff in proving his or her case. The authorities which came the closest in favour of the plaintiff's general proposition that a 'party' may be ordered to submit to a medical examination were the observations of Lord MacDermott in S v S to which I have referred earlier; R v Jenkins; Ex parte Morrison [1949] VLR 277 (Barry J); McComish v Sharpe [2002] WASC 96 (Master Bredmeyer); and Hallett v Cottam (Simmonds J).

In R v Jenkins; Ex parte Morrison, Barry J at first instance considered whether the court had the power to order adult parties to submit to a blood test in proceedings involving the custody of a child aged 3 1/2 years. His Honour observed that the relevant statutory context required that the welfare of the child be given paramount consideration. The facts were as follows. Mrs Morrison and Mrs Jenkins had each given birth to a female child in the same room of a hospital around the same time. The Morrisons alleged that there had been a mix‑up at the hospital and that Mrs Morrison had been given Mrs Jenkins' baby, and that Mrs Jenkins had been given the child to which Mrs Morrison had given birth. Blood grouping tests of the Morrisons indicated that the child in their custody could not be a progeny of the union between Mr and Mrs Morrison. Mrs Jenkins and her husband would not, however, agree to submit to a blood grouping test. Barry J held that the Supreme Court had the inherent power to order Mr and Mrs Jenkins to submit to a blood grouping test, even though they were not willing to undertake such a test. His Honour's reasoning relied heavily upon United States authority. His Honour declined, however, to exercise the discretion to order a blood grouping test in that case. His Honour was satisfied on the evidence otherwise available that the child in the Jenkins' custody was the child of the Morrisons. It may be, although it is not entirely clear, that his Honour was fortified in drawing inferences in favour of the Morrisons, having regard to the fact that the Jenkins had refused to undergo blood testing. On appeal to the Full Court, the decision of Barry J was overturned. However, the Full Court found it unnecessary to consider whether there existed the inherent power to order blood tests contrary to the will of the person concerned (299).
In my view, R v Jenkins; Ex parte Morrison provides no sure or compelling foundation for the proposition advanced by the plaintiff in this case, having regard to the particular factual circumstances of that hearing and the statutory context in which it took place, Barry J's reliance on United States authority, and the fact that the Full Court found it unnecessary to consider the question of the inherent power.
The next case upon which the plaintiff particularly relied was the decision of Master Bredmeyer in McComish v Sharpe. That case concerned a claim by the third plaintiff to be the son of the deceased, and thereby entitled to the deceased's estate pursuant to the Administration Act 1903 (WA). The third plaintiff was a child. The second plaintiff was the mother and next friend of the third plaintiff. The defendants were the parents of the deceased. The defendants, as parents of the deceased, would be entitled to the deceased's estate if the third plaintiff was not the child of the deceased. The defendants applied for an order that the second plaintiff and the third plaintiff submit to DNA testing with the view to establishing whether the third plaintiff was the child of the deceased. The second plaintiff, on behalf of herself and the third plaintiff child, resisted that application. Ultimately, the master made orders in accordance with the defendants' application in purported pursuance of O 28 r 1 of the of the RSC [10]. However, in the course of his reasons, the master made reference to S v S and said, in effect, that he preferred the reasoning of Lord MacDermott to the reasoning of Lords Reid and Hodson [9]. The master, in effect, said that the court would have the power in its inherent jurisdiction to order a stay or dismissal of the plaintiffs' action if the plaintiffs did not undergo DNA testing [9]. It is apparent that on the facts of that case, the master considered that the defendants would be denied a fair trial unless the plaintiffs submitted to DNA testing. Even if the master's decision were correct (about which it is unnecessary to reach a concluded view), it provides very little guidance to a proper resolution of the issues in this case.
Hallett v Cottam was also a case in which the defendants sought orders that the plaintiffs submit to DNA testing. The plaintiffs had commenced statutory inheritance proceedings in which they both claimed to be daughters of the deceased. In the case of the second plaintiff, she claimed to be the daughter as a result of the alleged rape of her mother by the deceased. Simmonds J observed that the 'account of the second plaintiff's procreation by the deceased is strongly contested' [15]. Simmonds J found that O 28 r 1 had no application in the procedural circumstances of that case [52] ‑ [55], but held that the court had the inherent power to 'make the orders sought by the defendants, or similar orders' [84] (emphasis added). His Honour did so in reliance, in effect, on Lord MacDermott's observations in S v S and the English authorities represented by Starr v National Coal Board [72] ‑ [77], [83]. His Honour invited the parties to prepare a minute of orders which would reflect his Honour's reasons [145]. He observed that although O 28 r 1 did not apply in terms, he considered that, at a minimum, the matters in O 28 r 1 should be addressed by such orders [146]. Order 28 r 1(2A) provides, in effect, that the court may order that a party 'shall submit himself for examination' and O 28 r 1(3) provides:
If any party fails to submit himself for examination as required by this Rule, or in any way obstructs the examination, the Court may order that the proceedings be stayed, either wholly or in part, until the examination has taken place, or that any pleading be struck out.
Although the final orders made by his Honour are not apparent, if and to the extent that his Honour may have been contemplating, as in cases such as Starr v National Coal Board, an order that the plaintiffs' proceedings be stayed unless they submitted to DNA testing, such an order would be a conventional one within the inherent power of the court. Whether another order, unconnected with the stay of the proceedings, could properly have been made in those circumstances, is open to doubt. Nevertheless, for present purposes it is sufficient to note that his Honour did not address the question of whether the court has the inherent power to order a defendant to undergo DNA testing or any other medical procedure, on pain of contempt of court if they refused, in order to assist the plaintiff to prove his or her case.
The plaintiff in this appeal also referred to certain Canadian authorities to the effect that the court could order a plaintiff to undergo DNA testing. In MV v LV (2007) DLR (4th) 549, the primary judge said that he was bound by authority to the effect that there was a statutory power to order a plaintiff to undergo DNA testing, but also concluded that the court had such a power within the inherent jurisdiction of the court. On appeal, the court accepted that the primary judge had authority to make the order, but said the source of the authority was not critical to the disposition of the case: Vidal v Vidal (2005) 248 DLR (4th) 539 [20]. In Nandwani v Nandwani 2013 MBCA 12, the court found that the primary judge erred in finding that the court had inherent jurisdiction to order a DNA sample from a non‑party [35]. Overall, these authorities provide no real assistance to the plaintiff's claim.
Decisions which indicate that the court does not have the inherent power (again, leaving aside any statutory power or power conferred by the Rules of Court) to directly order a person of full age and capacity to submit to a medical examination or procedure, include the dicta in Kurnell v Randwick and S v S (per Lords Reid & Hodson) in the passages referred to earlier in these reasons; R v Martin [1992] 1 NZLR 313; and Re Riley [1996] 1 Qd R 209, 213. In Re Riley, the court was called upon to determine whether the Supreme Court had the power to order persons, not otherwise willing to do so, to provide bodily specimens for DNA testing which may provide evidence to resolve an issue of disputed parentage. The applicant contended that she was the daughter of the deceased and sought an order by way of testator's family maintenance. The deceased had never been married and was survived by five siblings. The executors and other beneficiaries under the will disputed the assertion that the applicant was a child of the deceased. None of the siblings were willing to submit to DNA testing. Williams J found that he had no power, either under the relevant statute or the inherent jurisdiction of the court, to order that the siblings submit to DNA testing. In LG v DK [2012] 2 All ER 115, Sir Nicholas Wall also said that he doubted very much whether the court had inherent jurisdiction to require an adult person lacking mental capacity to provide a bodily sample for DNA purposes [38].
In the end, the following considerations lead me to conclude that the master did not have the inherent power which he purported to exercise. First, there is an absence of authority in support of such a power and the cases referred to in a preceding paragraph indicate to the contrary. Secondly, the orders in question here are not designed to preserve the integrity of the court's processes and Anton Piller orders provide no relevant analogy.
Thirdly, unlike cases such as Edmeades v Thames, the order is not of a character which stays proceedings if a plaintiff, who invites the court to make findings of fact concerning the plaintiff's medical condition, refuses to submit to a medical examination reasonably required by the defendant. As the court observed in Alder v Khoo [2010] QCA 360, in the case of a plaintiff who is invoking the jurisdiction of the court, the 'action is stayed until he undergoes the further test. It is his choice whether or not to give blood' [30]. In the case of a defendant, the curial process will continue to be used by the plaintiff against the defendant, whether or not the defendant submits to the testing. Nor is the order here even in terms to the effect that unless the defendant submits to a DNA test, the defence be struck out, ie, an order ultimately involving, in effect, a form of summary judgment for the plaintiff. In making that observation, I should not be taken as deciding that such an order could properly have been made, particularly bearing in mind that summary disposition is conventionally associated with suppressing abuses of process or suppressing vexatious or frivolous claims or defences, and must always be attended with caution: see generally Batistatos v Roads and Traffic Authority of New South Wales [19] ‑ [25]: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24]. Rather, the point is that the form of the orders here indicate that their purpose was to require the defendant to submit to physical interference on pain of contempt of court if she refused. Indeed, the master said so in terms:
That then I think is what has to happen in a case such as this. Prima facie no sample for DNA testing can be taken from the defendant. To do so would be an assault. But the law could prevent the defendant from refusing to give consent. If she still continued to refuse to have the test then she would be guilty of contempt of court [14].
Fourthly, a party's interest in having access to all relevant evidence has its limitations. The orders under consideration are quite unlike ordering a defendant to give discovery or to answer interrogatories. Orders of the latter kind do no more than, in effect, require a defendant to disclose information, often confidential, which is of relevance to the plaintiff's claim (and, of course, any existing DNA or medical reports, if relevant, would prima facie be discoverable). They do not involve physical interference with the defendant. Even in the context of the disclosure of information, the intrusion into confidentiality of a party's affairs is incomplete through, eg, the operation of the doctrine of privilege.
That leads to the fifth and final point. It seems to me that it is one thing to order that a party consent to interference with their property rights by, eg, an order permitting access to that party's premises for certain limited purposes. It is another to order a party to submit to interference with their person. In this regard, I would respectfully consider there to be much force in the observations of Lord Reid and Lord Hodson in S v S. Their Lordships' observations are consistent with the observations of members of the High Court, albeit in a different context, in Secretary, Department of Health and Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218. In that case, Mason CJ, Dawson, Toohey & Gaudron JJ spoke of (233):
[t]he notion that, prima facie, any physical contact or threat of it is unlawful, is a right in each person to bodily integrity. That is to say, the right in an individual to choose what occurs with respect to his or her own person. In his Commentaries, Blackstone wrote:
[T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.
Also in that case, McHugh J said:
It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. To this general thesis, there is an exception: a person cannot consent to the infliction of grievous bodily harm without a 'good reason' (Attorney-General's Reference [No 6 of 1980], [1981] 1 QB 715, 719). But save in this exceptional case, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self‑determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body (309 ‑ 310).
The orders here fail adequately or at all to recognise or give proper effect to the defendant's undoubted right to bodily integrity. In my view, there is no reason to suppose that in the proceedings under consideration, the court's inherent jurisdiction to safeguard the administration of justice would extend to making an order which exposes the defendant to attachment if she does not submit to physical interference with her person.
For these reasons, in my respectful view, the learned master did not have the inherent power to make the orders which he made.
There were other features of the orders made by the master which, on their face, appear to be unsatisfactory. The orders were almost Byzantine in their complexity and purported to order persons who were not parties and who were not present before the court when the orders were made, to do specified things. In the case of one third party, the order directed the person 'to comply strictly with Part 11E' of the Family Law Regulations 1984 (Cth). There are no such regulations. It is, however, unnecessary to dwell on these aspects of the orders in light of the conclusion reached above.
Finally, counsel for the respondent/plaintiff invited the court to dismiss the application for leave to appeal on the basis that even if the master did not have inherent jurisdiction to make the orders, had the plaintiff given the requisite notice under O 28 r 1, the orders could and would have been made under that rule, so no prejudice is occasioned to the defendant in any event. That submission should be rejected. The proper construction of O 28 r 1 was not the subject of considered analysis below and the plaintiff's submission, in effect, carries with it the assumption of findings of fact in her favour relevant to the operation of O 28 r 1(2B) and r 1(3).
I would join in the orders proposed by Newnes JA in his reasons.