Hallett v Cottam
[2007] WASC 147
•28 May 2007
HALLETT & ANOR -v- MARIE KAYE COTTAM As Executrix of the Estate of CLARENCE WATKINS & ORS [2007] WASC 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 147 | |
| 09/07/2007 | |||
| Case No: | CIV:1707/2005 | 18, 25 & 28 MAY 2007 | |
| Coram: | SIMMONDS J | 28/05/07 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| A | |||
| PDF Version |
| Parties: | DENISE LILA HALLETT MELISSA LORRAINE SHADBOLT MARIE KAYE COTTAM As Executrix of the Estate of CLARENCE WATKINS MARIE KAYE COTTAM PIXIE KATHLEEN NORTON SUZETTE CANDY MARRIOTT TERRI YVONNE BURTON |
Catchwords: | Procedure Inherent or ancillary jurisdiction of the Court to order DNA testing for purposes of proceeding under Inheritance (Family and Dependants' Provision) Act 1972 (WA) Jurisdiction to do so under O 28 r 1 Procedure Exercise of inherent or inherent jurisdiction to make orders for DNA testing for purposes of proceeding under Inheritance Act Relevant factors Procedure Terms of orders for DNA testing for purposes of proceeding under Inheritance Act Procedure Costs of DNA testing ordered for purposes of proceeding under Inheritance Act Costs of application for orders |
Legislation: | Family Court of Western Australia Act 1997 (WA), s 191 Family Law Act 1975 (Cth), s 69S, s 69W Inheritance (Family and Dependants' Provisions) Act 1972 (WA), s 4(1), s 4(4), s 6, s 7 |
Case References: | Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Cole v Public Trustee, unreported; SCt of NSW (Young J); 10 March 1988 F v Z (2005) 193 FLR 218 Farnell v Penhalluriack [2006] VSC 240 In The Marriage of J and P (1985) 80 FLR 126 Lane v Willis [1972] 1 All ER 430 M v H, unreported; SCt of WA; Library No BC9506595; 14 June 1995 Marion's Case (1992) 175 CLR 218 McComish v Sharpe [2002] WASC 96 Piggott v Harrex [2000] TASSC 72 Ramsay v Pigram (1968) 118 CLR 271 Re Gray [2001] 2 Qd R 35 Re Riley [1996] 1 Qd R 209 Reid v Howard (1995) 184 CLR S v S, W v Official Solicitor [1972] AC 24 Starr v National Coal Board [1977] 1 All ER 243 The King v Jenkins; Ex parte Morrison [1949] VLR 277 Tipa v Jones, unreported; SCt of NSW; Library No 2557; 19 August 1996 Y v Austin Health [2005] VSC 427 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MELISSA LORRAINE SHADBOLT
Second Plaintiff
AND
MARIE KAYE COTTAM As Executrix of the Estate of CLARENCE WATKINS
First Defendant
MARIE KAYE COTTAM
PIXIE KATHLEEN NORTON
SUZETTE CANDY MARRIOTT
TERRI YVONNE BURTON
Second Defendants
(Page 2)
Catchwords:
Procedure - Inherent or ancillary jurisdiction of the Court to order DNA testing for purposes of proceeding under Inheritance (Family and Dependants' Provision) Act 1972 (WA) - Jurisdiction to do so under O 28 r 1
Procedure - Exercise of inherent or inherent jurisdiction to make orders for DNA testing for purposes of proceeding under Inheritance Act - Relevant factors
Procedure - Terms of orders for DNA testing for purposes of proceeding under Inheritance Act
Procedure - Costs of DNA testing ordered for purposes of proceeding under Inheritance Act - Costs of application for orders
Legislation:
Family Court of Western Australia Act 1997 (WA), s 191
Family Law Act 1975 (Cth), s 69S, s 69W
Inheritance (Family and Dependants' Provisions) Act 1972 (WA), s 4(1), s 4(4), s 6, s 7
Result:
Orders made
Category: A
Representation:
Counsel:
First Plaintiff : Mr J C Curthoys
Second Plaintiff : Mr P J Hannan
First Defendant : Mr M R B Hemery
Second Defendants : Mr M R B Hemery
Solicitors:
First Plaintiff : Kuscevich & Associates
Second Plaintiff : Curwood & Co Pty Ltd
First Defendant : Talbot & Olivier
Second Defendants : Talbot & Olivier
Case(s) referred to in judgment(s):
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Cole v Public Trustee, unreported; SCt of NSW (Young J); 10 March 1988
F v Z (2005) 193 FLR 218
Farnell v Penhalluriack [2006] VSC 240
In The Marriage of J and P (1985) 80 FLR 126
Lane v Willis [1972] 1 All ER 430
M v H, unreported; SCt of WA; Library No BC9506595; 14 June 1995
Marion's Case (1992) 175 CLR 218
McComish v Sharpe [2002] WASC 96
Piggott v Harrex [2000] TASSC 72
Ramsay v Pigram (1968) 118 CLR 271
Re Gray [2001] 2 Qd R 35
Re Riley [1996] 1 Qd R 209
Reid v Howard (1995) 184 CLR
S v S, W v Official Solicitor [1972] AC 24
Starr v National Coal Board [1977] 1 All ER 243
The King v Jenkins; Ex parte Morrison [1949] VLR 277
Tipa v Jones, unreported; SCt of NSW; Library No 2557; 19 August 1996
Y v Austin Health [2005] VSC 427
(Page 4)
- SIMMONDS J:
Introduction
1 My reasons for judgment on the present application, reasons which are regrettably fairly lengthy, are organised as follows.
2 After an introduction I will provide a history of the proceedings. I will then describe the orders sought at the hearing, as those orders were amended.
3 I will then describe the issues before me. I will describe whether or not the court has jurisdiction to make the orders sought or similar orders. I will describe whether or not in the exercise of its discretion to make any such orders the court should make them. I will consider the terms of any such orders apart from costs. I will consider the costs of carrying out the DNA testing. I will consider the costs of this application.
4 I will conclude by referring the matter of further trial directions and indicate my views as to what they should contain, at a minimum.
5 I begin by indicating that this is a hearing ordered by Hasluck J on 20 April 2007. At the initial hearing before me, on 18 May 2007, the hearing was adjourned, first to 25 May, and then at that hearing to today, for reasons I will explain.
6 Hasluck J's orders had followed his Honour's grant of leave on 11 April 2007 pursuant to O 8 r 7 to the then solicitors for the defendants to cease acting for them. The orders on 11 April 2007 were against the background of the previous listing of the trial in the proceedings for two days, commencing 3 May 2007.
7 Hasluck J's orders of 11 April 2007 were on condition that the solicitors gave notice to the solicitors for the plaintiffs as follows:
"[f]or further directions, including any direction that may be required as to the trial of the action as a consequence of the application for ceasing to act for the defendants, including the possibility of the trial of the action listed for 3 [and 4] May 2007 being adjourned."
8 Hasluck J's orders subsequently, on 20 April 2007, had as at the date of the initial hearing before me, at least, not been extracted. The transcript of the hearing of 20 April 2007 indicates his orders included that the trial date of 3 May 2007 be vacated and the trial of the action be
(Page 5)
- adjourned to a date to be fixed, and that there be a further directions hearing to be held before a Judge in chambers on Friday, 18 May 2007. Hence the hearing before me.
9 To provide a background to the orders sought at the hearing before me, I must next set out a brief history of these proceedings.
History of the proceedings
10 By originating summons, dated 15 June 2005 and filed on 16 June 2005, the first plaintiff, then simply the plaintiff, sought an order that adequate provision be made out of the estate of the deceased for the plaintiff, pursuant to s 6 of the Inheritance (Family and Dependants' Provision) Act 1972 (WA). That legislative provision reads as follows:
"(1) If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
(2) The Court in considering for the purposes of subsection (1) whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.
(3) The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
(Page 6)
- (4) In making any such order the Court may, if it thinks fit, order that the provision may consist of a lump sum or a periodical or other payment."
11 The interpretation provision of the Inheritance Act, s 4(1) provides materially as follows:
"(1) In this Act, unless a contrary or other intention appears –
…
'child' in relation to any person or persons includes an illegitimate child[.]"
13 On 5 April 2006 orders were made joining the second plaintiff while the first defendant in her own right, and the others named as second defendants, were joined in that capacity or named in that capacity.
14 It is convenient at this point to describe the parties so established. The first plaintiff is, in the affidavit of the second plaintiff of 15 May 2006, stated to be a daughter of the deceased born on 26 September 1951.
15 The second plaintiff is the daughter of Gaye Lorraine Hodgkinson ("the mother of the second plaintiff", "the second plaintiff's mother", or "her mother") whose affidavit of 15 May 2006 states that the second plaintiff is the child born following a pregnancy that followed the deponent's rape by the deceased. This account of the second plaintiff's procreation by the deceased is strongly contested in these proceedings.
16 The first defendant who is also the first named second defendant is, in the affidavit of the second plaintiff of 15 May 2006, stated to be another daughter of the deceased, born on 24 May 1953.
17 The second named second defendant is, in that affidavit, stated to be another daughter of the deceased, born on 28 June 1959.
18 The third named second defendant is, in that affidavit, stated to be another daughter of the deceased, born on 29 June 1961.
19 The fourth named second defendant is, in that affidavit, stated to be another daughter of the deceased, born on 12 August 1955.
(Page 7)
20 I should add that it appears to be common ground in these proceedings that there are no other persons claiming or having a status within Inheritance Act, s 7 than the parties to the proceedings I have described.
21 Following the orders of 5 April 2006, further procedural steps were taken and a number of affidavits were or had been filed and served in addition to those already referred to.
22 On 9 March 2007, Le Miere J made the following directions for the trial in those proceedings:
"1. By no later than 4 pm Monday 26 March 2007, the First Defendant file an Affidavit setting out any payment to the beneficiaries of the state stating when any such payment was made, what the amount of the payment was and to whom the payment was made.
2. The Second Defendants file and serve any Affidavits they intend to rely upon at the trial of this matter by no later than 4 pm Monday 26 March 2007, failing which no further affidavits may be filed by any of them.
3. The First Defendant file and serve an Affidavit as to the assets and liabilities of the estate as Monday 3 April 2007 by no later than Monday 9 April 2007.
4. The First and Second Plaintiffs be at liberty to file an updated Affidavit as to their current assets and liabilities and income and expenditure by no later than Monday 2 April 2007.
5. Each of the parties identify the affidavits they intend to rely on at the hearing of the matter by no later than 4 pm Friday 13 April 2007.
6. The Affidavits identified under order 5 stand as the evidence in chief of the deponent subject to just objections. All deponents are to be available for cross-examination unless otherwise advised by the opposing party by 4 pm on Thursday 26 April 2007.
7. Each of the parties give notice of any objections to the admissibility of the evidence contained in any of the
- affidavits by no later than 4 pm Wednesday 18 April 2007.
- 8. The party relying on the evidence objected to respond to any such objection by no later than 4 pm Friday 20 April 2007."
23 Subsequent to those orders of 9 March 2007, a number of further affidavits were indeed filed and served.
24 A document entitled second plaintiff's objections to affidavit was also served, being a list of objections dated 18 April 2007. There do not appear, from my review of the file, to be any other documents of that sort for any of the other parties in this action that had been filed by the dates of the hearing before me on 18 and 25 May 2007.
25 It appears from the transcript of the hearing on 20 April 2007 that, as at that time, from the first plaintiff's point of view, while there had not been exact compliance with the trial directions of 9 March 2007, there had been sufficient compliance to permit the trial to go ahead on the listed dates of 3 and 4 May 2007. The second plaintiff appeared also to be content to have the trial so proceed.
26 It also appears from that transcript that the plaintiffs or one of them proposed to subpoena certain documents representing "a very small class of documents".
27 It further appears from the transcript of the hearing of 20 April 2007 that the defendants sought an adjournment to permit them to secure legal representation. Reference was also made to one of the defendants being overseas for about five and one half weeks from 24 June 2007.
28 In addition, the defendants indicated to Hasluck J that in their view they were not ready for trial as they wished to have DNA testing done and "a full birth certificate" for the second plaintiff secured as "all of us believe that [she] not to be our sibling".
29 The transcript also indicates counsel for the first plaintiff stated his belief that about $500,000 had been distributed from the estate in equal shares to each of the second defendants; about $169,000 remained in the estate.
30 Finally, I note from the transcript that Hasluck J indicated it would be desirable for the parties to obtain a list of available trial dates from the
(Page 9)
- listing co-ordinator, and further indicated that whether or not there should be the provision for assembly of further evidence such as that foreshadowed by the defendants should await submissions, including submissions by the legal representatives to be secured by the defendants, at the hearing that eventually came before me.
Orders sought at the hearings before me
31 At the initial hearing before me on 18 May 2007 the matters I have just described were confirmed by counsel for the parties. They all indicated a wish for an early trial. However, there were matters the four defendants put to me that it was said required address by suitable orders before trial.
32 Those matters had principally to do with the paternity by the deceased of the second plaintiff. Counsel for the defendants also indicated their concern to have additional affidavits for them put on in relation to issues that their counsel said had been raised by the second plaintiff, of alleged maladministration of the deceased's estate.
33 As to the latter, counsel for the first plaintiff indicated his view that the trial should not be held up on that account. The matter could be dealt with by reference to the evidence expected to emerge at the trial from the affidavits already filed and any further evidence based on them.
34 Counsel for the second plaintiff indicated he was content to have further affidavit evidence produced for the defendants, at least as I understood him. I took this to mean he would wish the opportunity to put on responsive affidavits, however.
35 As to the former matter, of further evidence on paternity, counsel for the defendants indicated the orders sought would be to take samples from the deceased, from the second plaintiff, from her mother, and from each of the four defendants. Each of the four defendants has already indicated their consent to this. However, there was no consent from the second plaintiff or from her mother; and her mother is of course not formally a party to these proceedings.
36 Counsel for the first plaintiff, indicating the first plaintiff's opposition to any such orders being made, pointed to the findings in earlier proceedings before a Magistrate in 1985, and subsequent maintenance enforcement proceedings, which he said had already addressed that matter. Further, he pointed me to a passage in an annexure to an affidavit of the first defendant of 25 March 2007. That passage was
(Page 10)
- a quotation from the deceased, one that I will return to, that the second plaintiff was "not a daughter to me".
37 I took counsel for the first plaintiff to be putting to me that this body of material made unnecessary any further evidence on the matter, particularly if gathering and responding to it would retard progress to a trial. He had reminded me that the trial in this matter, which had been set down for two days as I have indicated, had already been vacated at the instance of the defendants, as I have described.
38 Counsel for the second plaintiff for his part put to me I had no jurisdiction to make the orders sought against the second plaintiff, let alone the second plaintiff's mother. Further, he directed my attention to the pamphlet produced by the defendants, from the service that would conduct the DNA test and analyse the results, concerning what the pamphlet called, as it was described to me, "a sibling analysis". I will return below to the form of the analysis to be performed, which is not now expected to be in that form.
39 The pamphlet stated, it was indicated to me, that sibling analysis "may not provide a clear answer". That qualification indicated that the value to be obtained from the evidence did not warrant orders being made given their cost, which was purportedly $2,475 plus GST, for a relatively small estate and in view of the delay in reaching trial that that testing would produce.
40 Counsel reminded me of the defendants' conduct that had resulted in the vacating of the previous trial date, as I have indicated. In the event, as I considered there should be an opportunity for a further hearing on the making of the orders relating to evidence of the paternity, I adjourned the hearing of 18 May 2007, making a number of programming orders.
41 In the event, at the hearing on 25 May 2007 to which the hearing on the 18th was adjourned, I had three sets of material before me that had been filed in relation to an application of the defendants made pursuant to the first of my programming orders.
42 The first set of materials was a chamber summons dated 18 May 2007, which sought the following orders:
"1. The second plaintiff and her mother, Gaye Lorraine Hodgkinson, and the defendants and their mother, Lila Watkins, submit to DNA testing by mouth swab to establish whether the deceased, Clarence Watkins, is the
- biological father of the second plaintiff pursuant to the ancillary or inherent jurisdiction of this Honourable Court, and/or the power provided under Order 28 Rule (1) of the Rules of the Supreme Court.
- 2. The second plaintiff pay the defendants' costs of this application to be taxed."
- Those orders, as I will shortly indicate, were amended at the hearing before me.
43 There were also three affidavits filed for the defendants. One was an affidavit of Alexandra Gavrilidis, who is a senior scientist employed by Genetic Technologies as the head of laboratory DNA profiling. Genetic Technologies is the organisation to be used for the testing in this case. The affidavit of Ms Gavrilidis was sworn 21 May 2007, and included a number of useful annexures.
44 There was also an affidavit of each of Ricala Wallace and Lisa Watkins, both of whom are grand-daughters of the deceased. Both affidavits were sworn on 21 May 2007. Two affidavits of Carly Sluiter, who is a solicitor employed by the solicitors on the record for the defendants, one sworn 21 May 2007 and a further one sworn 25 May 2007. The latter was filed outside the time period allowed for in my programming orders at the hearing of 18 May, but at the hearing before me on the 25th it was let in by consent.
45 There were also, thirdly, written outlines of submissions, comprising an outline of defendants' submissions, which was filed in compliance with my orders, and a second plaintiff's outline of submissions, filed the following day. This was not strictly in compliance with my programming orders, but no objection was taken to the outline on that basis.
46 The second plaintiff's outline of submissions in particular was quite substantial, certainly for a hearing of this nature. In addition, counsel for the second plaintiff indicated that in the event I determined I had jurisdiction to make the orders sought, there would be read into evidence in opposition to the application a number of affidavits previously filed in this matter. They were:
• Affidavit of the second plaintiff sworn 15 May 2006. Reference would be made to par 14 and pages 7 to 9;
(Page 12)
- • Affidavit of the mother of the second plaintiff of 15 May 2006;
• Affidavit of the first defendant, sworn 18 August 2006. Reference would be made to par 9;
• Affidavit of the first plaintiff, sworn 3 October 2006. Reference would be made to par 3 and par 4;
• Affidavit of the fourth named second defendant sworn 23 March 2007. Reference would be made to pars 78 - 91, 95 (first sentence) and 100; and
• Affidavit of the second named second defendant sworn 21 March 2007. Reference would be made to Annexure 4 (page 29).
47 At the hearing on 25 March 2007, counsel for the defendants indicated they no longer were seeking orders as the chamber summons had provided against the mother of the second plaintiff and also as the chamber summons had provided against the mother of the defendants.
48 Counsel for the defendants also referred, without objection from any other party, to a number of other affidavits in these proceedings, as I will indicate.
The issues before me
49 The issues before me, it seems to me, are four:
• Whether or not the Court has jurisdiction to make the orders sought or similar orders, either under O 28 r 1 or under the Court's ancillary or inherent jurisdiction.
• If it has such jurisdiction, whether or not in the exercise of that jurisdiction the Court should make the orders or similar orders.
• If the Court decides it should make such orders, the terms of such orders and in particular the terms as to how the cost of DNA testing and analysis should be borne, as well as the related matter of the costs of the present application.
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- • Finally, in any event, what further directions, if any, for the trial in this action should be made.
50 It emerged from the submissions made to me, and particularly from the lengthy written submissions from the second plaintiff, both that there was a paucity of direct authority on most of the issues in this State, and that at least the first and second issues I have listed raised questions of considerable nicety, to which a range of answers had been returned on what authorities I might, subject to the cautions counsel put to me, resort to.
51 As I indicated at the conclusion of the hearing, I indicated it was necessary for me to take a short time to consider my decision, with a view, in the light of the delays that had already ensued in this matter, to providing my decision with my reasons as quickly as possible.
Whether or not the Court has jurisdiction to make the orders sought or similar orders
52 As I have indicated, two bases for jurisdiction were referred to in the hearing before me. One was O 28 r 1, and the other was the inherent jurisdiction of the court, which might also be called in this context, as I will explain, its ancillary jurisdiction.
53 In my view, O 28 r 1 is not the appropriate basis on which to found an order of the sort the defendants seek. That rule empowers the Court (O 28 r 1(1)(b)), in certain circumstances to order a "party" to submit himself or herself to an examination. The examination referred to appears to be one by a medical practitioner. There are provisions for the written report by the medical practitioner, including for a further and better report.
54 Circumstances referred to in the rule include (O 28 r 1(1)(a)), that the cause or matter before the court is one, "[w]here it becomes material to consider the question of the physical or mental condition of any party." In addition, the rule appears to envisage (O 28 r 1(1)(b)), that a notice by an opposing party seeking such an examination, setting a specified time and place for the examination by a medical practitioner, has been served on the party to be examined, and either that party has refused to comply or there has been, "[d]efault of agreement as to the time and place of examination."
55 There appears to have been no notice as required by the rule. That appears to me to be sufficient to make resort to it inappropriate.
(Page 14)
56 It was submitted by counsel for the second plaintiff that the rule was inapplicable in any event, as taking a mouth swab for the purposes of DNA analysis is incapable of being an examination relevant to a "physical condition" of a party.
57 For this purpose, counsel said I should not be persuaded by the decision in McComish v Sharpe [2002] WASC 96, of Master Bredmeyer, at [11], where the learned Master concluded that "physical condition" in O 28 r 1 extended to "genetic make-up".
58 The learned Master cited no authority for this proposition, which it was put to me was far from self-evident. Testing on analysis of DNA is not an assessment of "condition", it was said, but of a (molecular) feature of the subject, like hair, eye colour, height. In any event, I should not be astute to construe the rule more broadly than a strict or narrow reading of its words required, because at stake is a fundamental common law principle of bodily inviolability, without consent, or putting the matter another way, the autonomy of adult persons of sound mind with respect to their bodies.
59 I am far from convinced that O 28 r 1 is, as a matter of ordinary language, incapable of application to examinations to determine genetic make-up. Nor am I convinced that the fundamental principle referred to, which I return to below, compels or points to a different conclusion. However, for the reasons earlier given, I do not consider I have to go any further into the submissions.
60 That leaves any other source of jurisdiction to make the orders sought or similar orders. The only other source put to me, after it was made clear by the defendants they were not relying on O 28 r 2, was the inherent or ancillary jurisdiction of the court.
61 Order 1 r 3A provides as follows:
"The inherent power of the Court to control the conduct of a proceeding is not affected by these Rules."
62 Before me there appears to have been no contest that if, in the absence of a provision in the Rules, like O 28 r 1, the Court would have had inherent jurisdiction to make the orders sought or similar orders, then O 28 r 1 should not be understood to have any effect on such inherent jurisdiction. I consider that position to be correct, on O 1 r 3A, see Kendall C and Curtos J, Civil Procedure in Western Australia, at [1.0.4].
(Page 15)
63 The contentions of the parties before me centred on the scope of the inherent jurisdiction of the Court, and in particular the judgments in S v S, W v Official Solicitor [1972] AC 24, a House of Lords decision. I pause briefly to note that this case is sometimes also referred to as S v McC, which appears to be one form of the name of the case as it was in the Court of Appeal.
64 In particular, I was referred to the judgments of Lords Reid, Hodson and MacDermott. S v S was extensively quoted from (as S v McC, W v W) and the judgment of Lord McDermott was particularly referred to by the learned Master. However, the learned Master concluded he did not need to rely upon Lord MacDermott's view of the inherent or ancillary jurisdiction of a superior court, as the learned Master concluded O 28 r 1 was apposite.
65 I have already indicated my view of the application of that rule in this case.
66 S v S concerned the power of the High Court to order a serological examination of an infant. The House of Lords held unanimously the High Court had such power. In the course of so deciding, Lord Reid said this, at page 43, in the appeal case report, in a passage quoted in McComish, at [5], and widely relied upon in this country in whole or in part.
67 See, for example, InThe Marriage ofJ and P (1985) 80 FLR 126, Family Court of Australia, Treyvaud J at 132- 133:
"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. We have too often seen freedom disappear in other countries not only by coups d'etat 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 test."
- Lord Reid distinguished the position he set out there with respect to an infant, however.
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68 The only other members of the House of Lords to consider the position of an adult were Lords Hodson and MacDermott.
69 Lord Hodson said this, at page 57:
"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 Court of Appeal in this country reached a like decision in W v W (1963) 1964 Probate Reports p67."
70 It was not in contest before me that it was the same, or a similar principle, to which members of the High Court in Secretary Department of Health and Community Services v JWB and SMB, (Marion's Case (1992) 175 CLR 218 referred. There, Mason CJ and Dawson, Toohey and Gaudron JJ, after referring to certain provisions of the Criminal Code Act 1983 (NT) on assault and doing grievous bodily harm, said at 233 and 234:
"The corollary of these provisions, which embody the 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 [17th ed (1830), vol 3, p 120], 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.'
Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact. Consensual contact does not, ordinarily, amount to assault. However, there are exceptions to the requirement for, and the neutralizing effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability.
…
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- The factor necessary to render such [medical] treatment [of adults with full mental capacity] lawful when it would otherwise be an assault is, therefore, consent. The Code impliedly treats non-consensual medical treatment as an assault by making it a form of 'grievous harm' which may be consented to (s 26(3)). This, again, reflects the principle personal inviolability echoed in the well-known words of Cardozo J in Scholendorff v Society of New York Hospital [(1914) 105 NE 92, at 93]:
'Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault.'
McHugh J in the same case said this, at 309 – 310:
'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, at 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.'"
(Page 18)
72 Returning to S v S, Lord MacDermott said this, at pages 46 – 47, the passage quoted in McComish at [7]:
"(1) Has the High Court jurisdiction to order that a blood test be taken Of B a person who is sui juris and a party to proceedings before it?
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 a 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. It was a jurisdiction known to the Ecclesiastical Courts and to the superior courts before the Judicature Act 1873. By that time interrogatories and discovery of documents were well established examples; the Court for Divorce and Matrimonial Causes frequently ordered medical inspections in nullity suits raising issues of incapacity; and, perhaps the commonest instance of all, the courts would assist parties by granting subpoenas to secure the attendance of witnesses. This ancillary jurisdiction is, of course, subject to the limitations and
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- modifications imposed by Parliament and, in particular aspects, it has been codified and replaced by rules of court. But that is not to say it has vanished. The rule book naturally tends to lag behind new methods of proof and ascertainment, and the essential purpose of this ancillary jurisdiction means that it cannot be tied to what is old or outmoded. 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, where the Court of Appeal ordered a stay until the plaintiff, seeking damages for personal injuries, submitted himself to a medical examination. Lord Denning M.R. stated the principle, thus, at p 71:
'I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. 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.'
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."
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73 The learned master in McComish (supra) considered that this account represented a distinct matter from that addressed by Lords Reid and Hodson. The matter is one of procedure in the courts, and their interest in the just determination of disputes. That is different from the matter of authorising the application of force on a non-consenting adult, so as to render what would otherwise be a trespass to the person, or an assault, lawful.
74 There was no authority in this country that the research for the second plaintiff, for the defendants, or that I was able to undertake, revealed in which Lord MacDermott's judgment had been relied upon or even referred to in relation to orders like those sought by the defendants, or indeed any orders at all. Counsel for the defendants conceded this. However, I will shortly refer to an authority where the point, without reference to Lord MacDermott, appears to have been appreciated and left open.
75 I do not conclude, from the lack of authority – just referred to, that reliance on a view of the inherent jurisdiction of the court as described by Lord McDermott, at least in this State, would be to press the inherent jurisdiction of the court beyond proper boundaries in the manner deprecated in Y v Austin Health [2005] VSC 427, Habersberger J at [17] who referred to Reid v Howard (1995) 184 CLR, per Toohey, Gaudron, McHugh and Gummow JJ.
76 I also refer to a source not cited to me by any party, a useful article, "Inherent Jurisdiction to Regulate Civil Proceedings" (1997) 113 LQR 120, especially at 131.
77 I note for this purpose the inherent jurisdiction of the High Court in the United Kingdom to order a medical examination of adult parties to litigation on such a view of the inherent jurisdiction as I have associated with Lord MacDermott. This aspect of that Court's inherent jurisdiction has been well established, at least in recent times: see Starr v National Coal Board [1977] 1 All ER 243, per Scarman LJ at 248-49; per Geoffrey Lane LJ at 254, and per Cairns LJ at 255-56.
78 I consider the authorities cited to me by counsel for the second plaintiff, such as In The Marriage of J and P (supra), Treyvaud J at 133-134, rejecting the view there is inherent jurisdiction to order blood tests for the purposes of paternity determinations, do not reach the present view of the inherent jurisdiction of the court.
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79 Further, I note the following from Piggott v Harrex[2000] TASSC 72, Slicer J at [5], which appears to recognise the distinction between the two views of inherent jurisdiction and to leave the matter open:
"At common law there was no power to compel a person of adult age and capacity to undergo a blood test (S (an infant) v S [(supra)]; Re The Marriage of J & P [(supra)]; R v Martin (1992) 1 NZLR 313). It is not necessary to consider whether the Rules of Court relating to powers of discovery and medical examination or inherent power permit a court to order the provision of samples (see King v Jenkins; Ex parte Morrison [1949] VLR 277 at 280 – 285)."
80 I note, however, that in respect of the latter authority, The King v Jenkins; Ex parte Morrison [1949] VLR 277, Barry J, as he then was, at 280-285, there is an expression of a view which appears to me to be at odds with that of Lord Reid and in S v S which I have quoted.
81 I further note that the Full Court in Jenkins (supra), to which Slicer J makes no reference, did not express a view on this matter; see particularly at 299 of the VLR.
82 I recognise that there is authority – and Lord MacDermott refers to some of it – that, apart from any statutory provision, a trial Judge in any event can draw an adverse inference from an unreasonable refusal to participate in "safe and reliable testing" in relation to parenting: see In The Marriage of J and P (supra) at 134 – 135 and the authorities there cited.
83 However, I do not consider that means – and Lord MacDermott indicates it does not mean – hat there is no inherent jurisdiction of the sort contended for by counsel for the defendants. Indeed, the authorities in the United Kingdom appear to me so to indicate.
84 I conclude then that the Court has inherent jurisdiction to make the orders sought by the defendants, or similar orders. The questions whether or not to make such orders, and the terms of the orders, become ones of discretion, as I understand Lord MacDermott's judgment in S v S to be clearly indicating, and as appears to be the essence of the inherent jurisdiction of the Court in any event: see Re Riley [1996] 1 Qd R 209, Williams J, as he then was, at 213. See also the article "Inherent Jurisdiction to Regulate Civil Proceedings" (supra).
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Whether or not the Court should make orders
85 This is the first question of discretion. The second question of discretion as to the terms of orders, is addressed in a separate section in my reasons.
86 The present question is one in my view of the defendants showing it is "reasonable in the interests of justice" for the court so to order; such a showing is required of the party seeking the order, because the order sought is an "invasion of personal liberty": Starr (supra) per Scarman LJ at 249, quoting from Lane v Willis [1972] 1 All ER 430, per Sachs LJ at 435.
87 In determining whether or not the defendants have made such a showing, counsel for the second plaintiff put to me that a number of factors were relevant. These, he said, could be drawn – at least as to some of them – from the authorities on the unreasonable refusal of an injured plaintiff to undergo medical treatment when claiming damages for personal injuries, authorities referred to in In The Marriage of J and P (supra) at 133-134. They could also be drawn from the authorities on the exercise of statutory power to order parentage tests, such as that in Family Law Act 1975 (Cth), s 69W, authorities such as F v Z (2005) 193 FLR 218, per Walters FM, at [92] and the authority he cites. I agree.
88 From those sources I draw the conclusion that it is relevant to consider whether or not the defendants had an honest and reasonable belief that there was a doubt as to the paternity of the second plaintiff. Counsel for the defendants referred as well to the belief being bona fide, but I do not believe that that adds anything significant to the requirement for an honest belief.
89 There appears to be no contest as to the honesty of the defendants' belief. However, the reasonableness of their belief is very much in contest.
90 I consider that, in assessing reasonableness, I should approach the matter objectively, although this does not prevent me taking account of the state of knowledge and the idiosyncrasies of the defendants: see In The Marriage of J and P (supra) at 34. However, there does not appear to me to be any reliance on any such knowledge or idiosyncrasies in this case.
91 At the same time, I consider that a belief could not be reasonable where the circumstances can be shown in a hearing such as the present
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- one, which is before there has been the opportunity for evidence to be led and tested at trial, to warrant only the conclusion that the issue to which the DNA testing would relate has been established.
92 Counsel for the second plaintiff appeared to put to me that such a showing could be made in this case. He pointed me to evidence in the form of what appeared to be admissions of paternity, both by the deceased and by the first plaintiff and the fourth named second defendant.
93 The Shadbolt affidavit of 15 May 2006 par 14, the second named second defendant's affidavit of 21 March 2007 annexure 4, and the affidavit of the mother of the second plaintiff of 15 May 2006 at 45 - 46, were referred to in the first respect. The second named second defendant's affidavit of 21 March 2007 par 4(e) was referred to in the second respect. The fourth named second defendant's affidavit of 23 March 2007 at pars 78-91, 95 and 100, was referred to in the third respect.
94 However, it is apparent to me that, matters of admissibility of the admissions in the first respect aside (see M v H, unreported; SCt of WA; Library No BC9506595; 14 June 1995 at 8, to which I will return) and the status of the evidence in the second and third respects as against the estate also aside, there is the question of the weight of all of this evidence.
95 This question is to be assessed in light of the apparently equivocal character of at least some of the evidence, such as that in the third respect, and against the evidence on which the defendants rely, including some evidence to which the counsel for the second plaintiff had directed me, most notably the affidavit of the first defendant of 25 March 2007 annexure 4, "statement of the wishes" of the deceased (which also raises questions of admissibility) in which the passage occurs I previously quoted. That passage is that the second plaintiff is "not a daughter to me", a passage which, of itself, must be seen to be equivocal, but open to the construction contended for by counsel for the defendants, at least at first blush.
96 I note below that there was also an agreement, between the deceased and the mother of the second plaintiff, that the second plaintiff was the deceased's daughter on which maintenance orders were made. That basis for those orders seems to me to raise issues no different from those referred to in connection with the evidence of admissions by the deceased, except that the agreement appears on its face to lack any element of equivocation.
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97 In short, I consider that no showing of the sort apparently contended for by counsel for the second plaintiff has on balance been made in this case in proceedings of this nature. I also consider that the defendants have shown reasonable grounds for the belief that the matter of paternity is in doubt. However, on the evidence I have referred to, it cannot be said that the grounds –at least at this stage and on the evidence presented to me and on the argument the opportunity for which could be had at this stage – are strong ones.
98 Counsel for the second plaintiff said a further factor relevant to the exercise of my discretion was the potential utility or lack of it of the test proposed. In this case there are two forms of tests that might be employed.
99 One form of test involve comparing with the analyses of a mouth swab, from the second plaintiff and the defendants, the analysis of a sub-sample or of sub-samples from a clinical sample of tumour tissue removed from the deceased in April 2004 as part of a clinical trial in which the deceased had participated. This represented a "direct parentage test", as described in the Gavrilidis affidavit of 21 May 2007, par 7, which would provide results producing a certainty that the second plaintiff is not the deceased's daughter of 100 per cent, if that were the report, and that the second plaintiff is the deceased's daughter of greater than or equal to 99.95 per cent, if that were the report.
100 The other form of test involved comparing the samples from the second plaintiff and the defendants only. This represented a "sibling reconstructed parentage test" (Gavrilidis affidavit of 21 May 2007 at par 7), which would produce corresponding results with certainties of 100 per cent and of greater than or equal to 90 per cent respectively.
101 There is no other evidence on this matter before me. The possibility that no finding can be returned is not entered into in the affidavit material.
102 I also note that there is, in relation to the sampling for the direct parentage test, the statement that the sub-sample or sub-samples from the tumour sample "should be sufficient to extract DNA suitable to build the deceased's DNA profile" (the Sluiter affidavit of 25 May 2007 at par 13.3).
103 Equivalent statements are made with respect to the mouth swabs from the siblings and the second plaintiff, so far as the respective DNA profiles of those parties are concerned.
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104 Counsel for the second plaintiff laid particular references, both on the lack of precision as to the source of information on which the deponent relied in relation to the sampling from the deceased, and the qualified language attributed to the source.
105 However, I do not consider either that lack or that qualification (or the possibility I have referred to – no finding being returned – on which as I said I have no evidence) telling against the exercise of my discretion. To the contrary, the evidence before me points to a possibility of significance of a test of substantial utility. That possibility appears to me, given the relatively slight invasion of personal liberty that testing by mouth swab would involve, a good reason in favour of the exercise of the discretion in this case. The matter cannot, however, be put higher than that, and the matter is subject to the point I reach next.
106 Counsel for the second plaintiff also submitted that there is a strong basis for concluding that the results of the tests would not in any event be capable of being admitted into evidence or given any weight, for three reasons.
107 One reason is that there is a strong basis for an issue estoppel arising in respect of the status of the second plaintiff as a daughter of the deceased out of proceedings involving the award of maintenance for the former against the latter.
108 The second reason is that there is a strong argument that there is a statutory conclusive presumption arising from findings in those proceedings to the same effect.
109 The third is that there is a strong argument that such finding, or the admissions of the deceased previously referred to, are given equivalent effect by a provision in the Inheritance Act.
110 I deal with each of these reasons in turn.
111 As to issue estoppel, this was rested on decisions awarding the mother of the second plaintiff maintenance for the second plaintiff against the deceased. I was referred to the affidavit of the mother of the second plaintiff of 15 May 2006, which in an annexure contained certain papers obtained from the Family Court of Western Australia relating to such proceedings.
112 However, I note that some of those papers at least appear to indicate that the orders were made on the basis of an agreement by the deceased
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- with the mother of the second plaintiff to pay maintenance in respect of the second plaintiff in which the deceased acknowledged he was the father of the second plaintiff. I have referred to this agreement previously.
113 I note that there is no reference in that agreement to the circumstances in which the deceased became the father of the second plaintiff, circumstances referred to in the affidavit of the mother of the second plaintiff of 15 May 2006. I would not of course expect reference to those circumstances there.
114 It is thus not clear that there was a finding on a contested issue in respect of parentage. Indeed, the contrary appears, on those indications, to be the case.
115 There is authority to which counsel for the second plaintiff referred me that issue estoppel can arise out of proceedings against a person so far as others in privity of blood with that person are concerned, here the deceased and the defendants: see Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, per Lord Reid at 910 ; and Ramsay v Pigram (1968) 118 CLR 271, per Barwick CJ at 279, both of whom refer to privity of blood without further elaboration.
116 However, I also note Farnell v Penhalluriack [2006] VSC 240, Bongiorno J. That was an application for a stay of proceedings by a mother seeking a declaration of paternity of her daughter under the Status of Children Act 1974 (Vic), s 10. I note there is no legislation of that sort in this state.
117 The application in Farnell (supra) rested on dismissals of applications by the applicant's daughter for maintenance in the Family Court of Australia, in the earlier of which the daughter signed a minute of consent orders that included an acknowledgment that DNA test results proved the person in respect of whom the declaration was sought was not her father. However, no determination of the merits was involved.
118 Bongiorno J concluded that an issue estoppel was not raised against the plaintiff. He appeared so to determine in view of the fact that the precise issue had not been determined on the merits, and the more limited application of estoppel in proceedings in a court that could be said to be exercising a remnant of the common law parens patriae jurisdiction.
119 It is not clearly the case here that it could be said the court would, in determining the application under Inheritance Act s 6, be exercising a remnant of common law parens patriae jurisdiction, although the matter
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- seems to me at least to be arguable. However, it might also be suggested that in determining the issue of whether the second plaintiff is a child of the deceased with consequential effects on the defendants in such a proceeding, there might be a reason to confine any issue estoppel more narrowly than in other cases.
120 Further, it appears on the material before me that the matrimonial proceedings in this case may not have given rise to findings of the sort on which an issue estoppel could rest, although I appreciate the distinction between affirmative orders and orders dismissing an action.
121 I note, however, that in considering the matter further two matters not addressed to me would appear to require attention, in addition to the ones I have referred to.
122 One is the status of the first defendant as executor of the estate of the deceased. See Spencer Bower Turner and Handley, Res Judicata, 3rd ed, Butterworths, London 1996, at [231]. The other is that a question may arise for the application of issue estoppel out of one possible result from the tests sought: see Laws of Australia at [16.1.52].
123 I consider the matter of whether or not an issue estoppel arises as claimed cannot be readily resolved at this stage of the proceedings on the material and argument before me. I consider that the matter has some, but not decisive weight, against the exercise of my discretion to make the orders sought or similar orders.
124 As to the statutory conclusive presumption referred to, it is that to be found in Family Law Act s 69S and Family Court Act 1997 (WA), s 191. These provide that a person is "conclusively presumed to be a parent of the child" where, during the lifetime of a person, that person has been "found expressly" to be a parent of the child, or such a finding "could not have been made" unless the person was a parent of the child, and in both cases the "finding" was one of a "prescribed court".
125 It is not in contest that the courts involved here in the maintenance proceedings were such courts. I assume for the purposes of these provisionsthat there is a "finding" for the relevant sort for the purposes of them.
126 However, even although neither provision is prefaced by language in effect confining them to matters in the Family Court of Western Australia, it appears to me that such a confinement would result from the scheme of the Western Australian legislation. That scheme is to establish that court
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- to receive jurisdiction from both federal and state sources. It does not appear to me to be legislation of the sort represented, for example, by the Status of Children Act 1966 (NSW), s 12, or corresponding legislation in other states, such as Victoria (see Farnell (supra)). Section 12 of the New South Wales legislation contains very similar provisions to those in the federal and Western Australian legislation referred to.
127 I do not consider this reason to be made out.
128 As to the provisions of the Inheritance Act, the reference was to s 4(4), which is as follows:
"For the purposes of this Act, other than for the purposes of section 7(1)(e), the relationship between a parent and a child and any other relationship traced in any degree through that relationship, shall be recognised only if parentage is admitted by or established against the parent in the parent's lifetime."
129 There appears to be only one authority on this provision which the combined research efforts of the defendants, the second plaintiff and myself were able to uncover for the hearing. It is M v H (supra).
130 Although in M v H Murray J found it unnecessary to reach a final view of the matter, I consider, for the reasons he gives at 7 to 8, that the preferred construction of the provision is one which has it set a jurisdictional, not an evidentiary, requirement. That is to say, an order for the benefit of a child can only be made if parentage is recognised or established as the provision indicates. However, that is not necessarily proof of the relationship, which may depend on other matters. I therefore do not consider this reason made out.
131 Counsel for the second plaintiff also referred me to the matter of the delays in this case. He referred me to the history of the proceedings in which there were a number of delays, and the provision of affidavits for the action, first orders for which set a due date of 7 June 2006. I was reminded again of the circumstances of the vacating of the trial dates, and the delay since the orders of Hasluck J on 20 April 2007 until the present application, made on 18 May 2007.
132 While I consider those delays regrettable, not all of them can be laid at the feet of the defendants, at least on the material available to me. Nor are they such that they require no further consideration of the exercise of my discretion.
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133 Rather more telling, on the face of it, is the evidence in the Sluiter affidavit of 25 May 2007, par 6, indicating that notwithstanding the raising of the matter with their then solicitors, beginning in March 2006 (a date I note falling prior to the joinder of the second plaintiff), the defendants did not issue formal instructions to seek orders like those of the present application until 1 December 2006.
134 There was no explanation for this delay. Counsel for the second plaintiff put to me this is a case where, if it was a matter of the failure of their then solicitors to respond appropriately to their client's requests, that conduct should be visited on the clients.
135 However, there is no evidence to which my attention was drawn that the defendants were, by virtue of their knowledge of the factual and legal position, so placed that they ought to be held responsible for failing to press the matter on their then solicitors. In my view, the delay in this case between raising the matter with their solicitors and pursuing with them making an application like that involved in this case, in combination with the subsequent delay in bringing the present application, might be telling against the exercise in my discretion where the second plaintiff - or the first plaintiff, for that matter – could point to evidence of prejudice.
136 However, there is no such evidence in this case, except that which I might derive by general considerations from the delays. In particular, the delays in this case do not appear to be of an order that might reasonably be expected to be associated with loss of witnesses or impairment of their capacity to give evidence.
137 Finally, counsel for the second plaintiff pointed me to the delay in the production of the necessary report which, on the Gavrilidis affidavit of 21 May 2006, par 12 and par 13, appears to be six to eight weeks at a maximum. To this would need to be added time, it seems to me, for the second plaintiff, or the first plaintiff, for that matter, to put on any responsive affidavit and make any suitable objections to particular parts of the reports, if they are to be put in as evidence by way of affidavit.
138 That will undoubtedly delay the commencement of what is a relatively short two day trial. I further note that a delay in the trial will affect the first plaintiff, who has her own claim under the Inheritance Act s 6(1), and not only the second plaintiff.
139 However, I do not consider the delays involved in this case are such as to be telling against the exercise of discretion to grant the orders the defendants seek, or similar orders.
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140 I have noted in this review of factors relevant in the exercise of my discretion that there are a number that weight against its exercise in the defendant's favour, as I have indicated. In exercising my discretion, I must of course consider the cumulative weight of all of the factors in favour and against.
141 I have concluded that I should exercise my discretion in favour of making suitable orders to have the DNA testing done. I so conclude principally because of the contribution such testing could make to the resolution of the issues as between the second plaintiff and the defendants, and the lack of evidence of prejudice to the first and second plaintiff to which I had referred.
142 I had noted the evidence in the Sluiter affidavit of 25 May 2007, concerning the cost of carrying out the DNA testing, and annexure CS2, which puts that cost at the figure I previously referred to of, $2,475 plus GST.
143 While not insignificant, that cost does not seem to me to be disproportionate to the potential value to be obtained from the testing, even when there is added to that cost the possibility of further cost consequent on that evidence, including responsive evidence, and possible but I do not think significant, at least within a two-day time frame, additional trial time.
144 It must also be considered that the potential of that testing includes that of enhancing the possibility of a settlement with the second plaintiff, without of course in any way suggesting that it would necessarily produce one.
The terms of any such orders (apart from costs)
145 It follows that I should hear from the parties as to the terms of the orders that would give effect to these reasons.
146 I have noted the terms of O 28 r 1, which in my view offer at a minimum the matters such orders should address. They are the qualifications of the persons to take the mouth swabs and provide the tumour sub-sample; service of the report on the other parties and the timetable for such service, once the report is received by the defendants; and liberty to apply.
147 However, as I indicated to the parties at the hearing on 25 May 2007, there may also be items the orders should address that could be drawn by
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- analogy from relevant provisions in the Family Law Regulations 1985 (Cth), concerning parentage testing procedures and reports.
148 Further, I would consider it would be appropriate to set a timetable for the production of the report itself, given the circumstances of delay in this case. I will return to this matter shortly.
Costs of carrying out DNA testing
149 It was put to me by counsel for the second plaintiff that the position implicit in the provisions of O 28 r 1 was appropriate in this case. That position was that the costs of examination should be for the party incurring them, in any event.
150 I was referred to Tipa v Jones, unreported; SCt of NSW; Library No 2557; 19 August 1996 per Young J, where his Honour reviewed authorities on the cost of a successful application for a declaration under the Children (Equality of Status) Act 1976, (NSW), s 13. He reviewed authorities including ones on the practice in administration suits. His Honour adhered to the view he expressed in a previous decision, Cole v Public Trustee, unreported; SCt of NSW (Young J); 10 March 1988, which he described in Tipa v Jones as follows:
"Normally people have to pay their own costs on this sort of application, but, if the defendant needlessly contested it, then, the plaintiff should bear his or her own costs of preparation, but the costs of the day in court should be paid by the unsuccessful defendant."
151 In Tipa (supra), a case where the plaintiff's evidence was not contested, no order as to costs was made. I note that to the extent the first defendant incurs any part of the costs in question here, then, subject to the usual processes for review of claims for such costs, she would appear to be entitled to claim them as executor out of the estate: see Tipa.
152 My preliminary view is that it seems appropriate that, as O 28 r 1 appears to envisage, and Tipa would indicate, I should make no order as to the costs of carrying out the DNA testing in this case.
153 However, I consider that the time left at the end of the hearing before me on 25 May 2007, and the position in which that left counsel for the defendants, might not have permitted the matter to be fully argued. I would therefore allow the parties to address me further on this matter.
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The costs of this application
154 Again, counsel for the second plaintiff pressed on me the analogy from O 28 r 1, which in r 1(1)(c), provides:
"If the Court is of the opinion that either party has been unreasonable in the matter, it may order that party pay the costs of the application and any other costs unnecessarily incurred in consequence."
155 My preliminary view is that that analogy seems appropriate.
156 On that view, given the delay in relation to this application, the difficulty in relation to securing their orders to which these orders and to which the argument for these orders points, I would be unable to conclude that the second plaintiff has been unreasonable in relation to the matter.
157 However, on balance, I would not consider that the defendants have been unreasonable, such that they should pay the costs of an application on which they have succeeded.
158 The upshot would be, on this preliminary view, that no order as to the costs of the application would be made.
159 However, for the reasons previously given, I will hear from the parties as to the costs of the application also.
Further trial directions
160 I will hear from the parties on this subject.
161 At the commencement of the hearing on May 2007, counsel for the first plaintiff asked, in view of my announcement of the result at that point, whether or not at least a trial date could be fixed. I agreed, following the agreement of counsel for the other parties, and a trial date was fixed for 10 September 2007, subject to the appropriate checks with the listing authorities for the court.
162 There may well need to be other matters to which trial directions should be addressed. My preliminary view is that at least the matter of a timetable for the production of a DNA testing result, to the extent not covered in the orders previously allowed for, and any responsive expert evidence, need to be provided for.
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163 There are also the further matters that I referred to as having arisen at the 20 April 2007 hearing before Hasluck J, and having been confirmed before me.
164 It may also be necessary to subpoena samples or sub-samples of the tumour sample from the source referred to in the Gavrilidis affidavit of 25 May 2007, par 6.3. It seems to me that there is no bar to the production of samples represented by the fact that they represent tissue from a person who is now deceased. I refer for the purpose to the exception to the principle of the inviolability of the corpse, except insofar as the executor is concerned for the purposes of burial, where a part of the body is appropriated for a special purpose requiring the use of skill: see judgment of Re Gray [2001] 2 Qd R 35.
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