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…
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Details
- AGLC
- Hallett v Cottam [2007] WASC 147
- Case
- [2007] WASC 147
- Decision Date
CaseChat Overview and Summary
The plaintiffs in Hallett v Cottam sought orders for DNA testing to establish the identity of a deceased individual in order to pursue a claim under the Inheritance (Family and Dependants' Provision) Act 1972 (WA). The application was made in the Supreme Court of Western Australia, where the plaintiffs sought an order for the defendants to pay for the DNA testing. The defendants opposed the application, arguing that the court did not have the inherent or ancillary jurisdiction to order DNA testing, and that the plaintiffs had not demonstrated that the testing was necessary or appropriate.
The court was required to determine whether it had the jurisdiction to order DNA testing for the purpose of proceeding under the Inheritance Act, and if so, what factors should be considered in determining whether to make such an order. The court also had to consider the terms of any order for DNA testing, and the costs associated with the testing and the application.
In determining the jurisdiction to order DNA testing, the court noted that it had the inherent or ancillary jurisdiction to make orders that were necessary to enable it to exercise its jurisdiction. The court held that the inherent or ancillary jurisdiction could be exercised to make orders for DNA testing for the purposes of proceeding under the Inheritance Act, where such testing was necessary or appropriate to establish the identity of the deceased individual. The court held that relevant factors in determining whether to make such an order included the necessity and appropriateness of the testing, the availability of other means of establishing identity, and the interests of justice. The court held that the costs of the DNA testing and the application should be borne by the party who was unsuccessful in the proceeding in which the testing was ordered. The court held that the plaintiffs had not been unreasonable in pursuing the application, and that no order as to costs should be made.
The court made orders that the defendants were not to pay the costs of the application, and that no order as to the costs of the DNA testing should be made. The court held that the second plaintiff had not been unreasonable in pursuing the application, and that the defendants had not been unreasonable in opposing it. The court held that the terms of any order for DNA testing should be determined in the context of the proceeding in which the testing was ordered.
The court was required to determine whether it had the jurisdiction to order DNA testing for the purpose of proceeding under the Inheritance Act, and if so, what factors should be considered in determining whether to make such an order. The court also had to consider the terms of any order for DNA testing, and the costs associated with the testing and the application.
In determining the jurisdiction to order DNA testing, the court noted that it had the inherent or ancillary jurisdiction to make orders that were necessary to enable it to exercise its jurisdiction. The court held that the inherent or ancillary jurisdiction could be exercised to make orders for DNA testing for the purposes of proceeding under the Inheritance Act, where such testing was necessary or appropriate to establish the identity of the deceased individual. The court held that relevant factors in determining whether to make such an order included the necessity and appropriateness of the testing, the availability of other means of establishing identity, and the interests of justice. The court held that the costs of the DNA testing and the application should be borne by the party who was unsuccessful in the proceeding in which the testing was ordered. The court held that the plaintiffs had not been unreasonable in pursuing the application, and that no order as to costs should be made.
The court made orders that the defendants were not to pay the costs of the application, and that no order as to the costs of the DNA testing should be made. The court held that the second plaintiff had not been unreasonable in pursuing the application, and that the defendants had not been unreasonable in opposing it. The court held that the terms of any order for DNA testing should be determined in the context of the proceeding in which the testing was ordered.
Orders
Orders of the court
(1) 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.
(2) 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.
(3) No order as to the costs of the application would be made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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