Furesh v Schor

Case [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…

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Furesh v Schor [2013] WASCA 231
Case
[2013] WASCA 231
Decision Date

CaseChat Overview and Summary

The applicants, Furesh, sought an order for the defendant, Schor, to submit to a mouth swab to provide a sample for DNA analysis to determine the issue of paternity. The matter was heard in the Family Court of Australia. The applicants sought an order that Schor submit to a mouth swab to provide a sample for DNA analysis to determine whether he was the father of the applicants' child. The court had to determine whether it had the inherent jurisdiction to make such an order.

The court noted that inherent jurisdiction was a residual power of the court to do all that was necessary to achieve justice in the circumstances. The court held that it did have the inherent jurisdiction to make the order sought by the applicants. The court considered that the order was necessary to achieve justice in the circumstances, as it would enable the issue of paternity to be determined. The court held that the order was not an interference with Schor's personal autonomy, as he had the right to refuse to submit to the mouth swab. The court also held that the order was not an interference with Schor's personal autonomy, as he had the right to refuse to submit to the mouth swab.

The court made the order sought by the applicants, that Schor submit to a mouth swab to provide a sample for DNA analysis to determine whether he was the father of the applicants' child. The court held that the order was necessary to achieve justice in the circumstances, as it would enable the issue of paternity to be determined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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