J v D Pty Ltd - [2010] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
J v D PTY LTD & ORS
[2010] SASC 318
Reasons of Judge Lunn a Master of the Supreme Court
17 November 2010
PROCEDURE
Paternity testing under 6R 155 - meaning of "is in issue" - held not limited to in issue as part of a cause of action but extends to issues on particulars under 6R 98(2)(b).

PROCEDURE
Hearing in private - 6R 9(2)(b) - discretion to order it for contentious interlocutory proceeding - held embarrassment to parties sufficient here for exercise of discretion under (2)(b) - editing reasons for publication under 6R 236 so as not to reveal identity of parties - held where order made under 6R 9(2)(b) documents on court file for the application were not available for public inspection without permission under s 131(2) of Supreme Court Act.

J v D PTY LTD & ORS
[2010] SASC 318
JUDGE LUNN:
Reasons on plaintiff’s application for DNA testing and defendants’ application for restricted publication of these reasons

The plaintiff is the daughter of the deceased and the administrator[1] of her deceased estate. The second and third defendants are spouses. The first defendant is a company which was initially owned and controlled by the second defendant and is now owned and controlled by the third defendant.
[1] The pleadings refer to her as an executor, but I was told she is in fact an administrator, as the deceased died intestate.
In the 1970s and 80s the deceased and the second defendant had an affair. In 2003 the second defendant arranged for the purchase of a house in the name of the first defendant, which was thereafter occupied by the deceased and her two children until the deceased’s death in June 2009. In broad terms, the plaintiff alleges that the second defendant made various promises and representations to the deceased on which she acted to her detriment which either impressed a trust over the house in favour of the deceased or entitled her to it freehold. The defendants deny this, but admit that the deceased had the right to occupy the house for the duration of her life. In this action the plaintiff seeks to have the house transferred to her as the administrator of the deceased’s estate, but this is opposed by the defendants.
Paragraph 8 of the Amended Statement of Claim pleads:
During the course of the relationship[2] the deceased and the second defendant had two children [the plaintiff and her elder brother].
[2] Earlier the relationship is pleaded as being “a physical … relationship”.
The plaintiff’s counsel asserted that this was a plea that the second defendant was the father of the two children and the defendant’s counsel did not contend to the contrary. I so interpret it. In the Amended Defence the defendants pleaded there had been a sexual relationship at the relevant time between the deceased and the second defendant, but it neither admitted nor denied paternity of the children.
The plaintiff has pleaded that the second defendant promised that he would purchase the house “for the deceased and their children”. In broad terms, the plaintiff’s case is predicated on the second defendant providing the house for both his lover and his children. The Amended Defence makes no express reference to the paternity of the children. What is directly relevant in law to the causes of action pleaded is what the second defendant believed about the paternity of these children. However, he has not admitted in his Defence that he believed they were his children. It is unclear from the Defence what case he will seek to make out at trial about what, if any, obligations he believed he had to these children. In that event, proof by the plaintiff that she and her elder brother were the children of the second defendant will be admissible evidence on the general topic of what were his beliefs in his dealings about the house. The defendants have not sought to strike out paragraph 8 of the Statement of Claim as being irrelevant.
By an application of 14 September 2010, FDN12, the plaintiff seeks an order under 6R 155 that the second defendant submit to a relevant biological test to determine if she is his biological daughter.[3]
[3] No order is sought at this stage for paternity testing in relation to the elder brother, but this may be pursued later.
Rule 155 provides:
(1)     If paternity is in issue in an action, the Court may direct—
(a)     a party to the action to submit to a relevant biological test; or
(b)     a parent or guardian of a child whose paternity is in issue to have the child submit to a relevant biological test.
(2)A relevant biological test is a test that may provide evidence from which an inference relevant to paternity can be drawn.
(3)A person cannot be compelled to submit to, or to have a child submit to, a relevant biological test under this rule but, if the direction is not complied with, the Court may draw inferences from the non-compliance that it considers proper in the circumstances.
The defendants’ counsel submitted that the operation of R 155 was limited by its terms to where paternity was an issue as part of a cause of action such as a declaration of paternity under the Family Relationships Act, but not to where it was merely a background fact even if it was the subject of pleadings. I do not agree. No authority was cited on the point. The defendants’ counsel referred to a comparison with 6R 136(1)(a) on the obligation to make disclosure of documents which are “directly relevant to any issue raised in the pleadings”. However, this does not support his submission about the proper interpretation of R 155(1). Matters, such as particulars, can be pleaded which are not a pleading of the cause of action, but under 6R 98(2)(d) are required to give fair notice of the case to be made out at trial. They are also caught by 6R 136(1)(a). The words “raised in the pleadings” in 6R 136(1)(a) are probably words of limitation which exclude issues solely of credit.
The term “issue” is used in the Rules in several senses. 6R 90(1) provides “the issues to be resolved in an action are defined by the pleadings”. This makes whatever is not admitted in the exchange of pleadings an issue in the action. 6R 98(2)(b) provides that a pleading is to contain “such facts as give fair notice of the party’s case at trial”. This is what is usually known as particulars.[4] They are in addition to the material facts constituting the cause of action or ground of defence. A matter pleaded under 6R 98(2)(d), which is not admitted, is properly categorised as being an “issue” on the pleadings and in the action.
[4] See 6R 102.
6R 103(1)(b), concerning the effect of pleadings, conditionally bars issues being raised at trial of which notice should have been given, but was not given in the pleadings. Its sub-r (2)(a) refers to “issues relevant to credit” which are not to be part of the pleadings.[5]
[5] It is not necessary for me to decide here whether 6R 155 extends to an issue of credit.
6R 209(1)(a) and (b) refer to the Court giving directions about issues to be resolved at trial. Sub-r 209(3) suggests that a liberal interpretation should be given to “issues” in R 209.
6R 211 provides:
211—Trial of separate issues
The Court may order the separate trial of an issue of fact or law (or an issue involving mixed questions of fact and law) involved in an action.
There is nothing to suggest that this power cannot be exercised in respect of an issue raised under 6R 98(2)(d) as a particular as distinct from part of a cause of action.
6R 213(2)(b) in dealing with the evidence of experts refers to “issues” on which the experts agree and differ. This would suggest a wide power relating to any relevant area of dispute which forms part of the expert evidence.
There is nothing in this survey of the use of “issue” in the Rules which suggests that it is primarily, or generally, confined to issues forming part of a cause of action or a ground of defence. The inference is to the contrary, that it generally extends to any matter which requires determination by the Court from conflicting evidence and/or submissions.
This wider view of “issue” is applicable to 6R 155. 6R 155 is intended to enable evidence to be obtained in appropriate cases where it will assist in the just resolution of issues of paternity.[6] Here the plaintiff has properly pleaded under 6R 98(2)(d) that the second defendant is the father of the two children. It would not be in the interests of justice for this not to have been pleaded, but only to have been raised by the plaintiff at the trial, as material to why the second defendant did what he did in relation to the house and the deceased. As it is an issue raised on the pleadings, and not admitted by the defendants, the plaintiff needs to be in a position at trial to prove the allegations. The death of the deceased means that her evidence is not available to prove it. DNA tests will provide admissible evidence on the point.
[6] Western v Male (2010) 107 SASR 1.
Neither party adduced any evidence about what would be involved in the proposed DNA testing of the plaintiff and the second defendant. The position is similar to that which I dealt with in Johnson v Colangelo[7] and I rely here on similar reasons to those given there. Accordingly, subject to hearing any submissions about the terms of the order, I will make an appropriate order for the DNA testing of each of the plaintiff and the second defendant.
[7] 25 June 2010, [2010] SASC 187.
Hearing in private and publication of reasons
The defendants took out an application, FDN14, in relation to the plaintiff’s application which I have just dealt with, which sought the following orders:
2.The hearing of the Plaintiff’s interlocutory application filed 14 September 2010 be heard in private.
3.The Master’s Reasons for the Plaintiff’s interlocutory application filed 14 September 2010 be:
a. not made available for inspection and downloading from the Court’s website;
b. alternatively, published using initials or acronyms to describe any person or thing that may identify the parties to the Action.
The application was supported by an affidavit of the third defendant about her concern, and potential embarrassment, if there was to be media publicity about the plaintiff’s application for DNA testing of the second defendant.[8] The plaintiff took no attitude on this application.
[8] In Johnson v Colangelo, mentioned above, there had been prominent media publicity about the application. There, publication of the names of the parties had been prohibited by s 13 of the Family Relationships Act 1975, but that section does not apply to this action.
The defendants have not brought an application under s 69A of the Evidence Act 1929 for suppression of the allegations and evidence in this matter about the second defendant’s alleged paternity of the plaintiff and her elder brother.   Paragraph 2 of the application was brought under 6R 9 which provides:
9—Public access to hearings
(1)     All proceedings before the Court are, as a general rule, to be held in a place open to the public.
(2)     This general rule is, however, subject to the following exceptions—
(a)     a non-contentious interlocutory proceeding may be heard in private;
(b)a contentious interlocutory proceeding may, if the Judge or Master who is to hear it thinks fit, be heard in private;
(c)the Court has a general discretion to direct, if there is good reason to do so, that a proceeding be heard wholly or partly in private or that the public be excluded from the whole or a particular part of a hearing.
FDNs 12 and 13 qualify as contentious interlocutory proceedings for the purpose of 6R 9(2)(b). I am not aware of any authority on its application. The three sub-paragraphs of sub-r (2) comprise a progression of varying discretions for the various types of proceedings mentioned. Presumably there is good reason for the differences between them. “May” in (a) means it is a general judicial discretion at large. “Thinks fit” in (b) suggests that it is also a general discretion, but presumably something less than the very general discretion in (a). “Good reason to do so” in (c) suggests there must be some positive good reason established and that it is a more restricted discretion than that in (b).[9]
[9] The discretion in (c) seems to equate to that in s 69 of the Evidence Act: Re J N Taylor Holdings Ltd (2007) 249 LSJS 80 and (b) is probably a wider discretion.
FDNs 13 and 14 are dealing with allegations of paternity which have not yet been properly determined. Their subject matter is of potential embarrassment to the second and third defendants. It would be unfortunate if the allegations were made public, but then the determination at the trial was that the second defendant was not the father of the children. Parties should not be deterred from making such applications under 6R 155 for fear that the making of the application will be publicised. It is a proper exercise of the discretion under sub‑r (2)(b) to order that the hearing of FDNs 13 and 14 be in private.
The defendants also relied on 6R 236 for paragraph 3 of their application. Since 1 October 2010 that rule has read:[10]
(1)The reasons for a judgment, order or direction may be published in an appropriate case both in the form of a summary and in a more extended form.
(2)After publication of reasons for a judgment, the Registrar will include a copy of the reasons in the Court’s records relating to the proceedings.
Unlike its predecessor, it no longer requires publication of reasons on the Court’s website. However, there is still a general practice that most reasons will be published on the website. This is particularly so where they involve interpretations of laws and rules, and precedents of interest to the legal profession. These reasons fall into that category. The Court has an inherent jurisdiction to edit its reasons to limit the availability of sensitive material.[11] Here to avoid embarrassment to the defendants, it is appropriate to edit these reasons so that they do not name the parties or the deceased, or otherwise identify them. What is contained in these reasons is sufficient for their subsequent use as legal authorities and precedents. The order for hearing in private will also apply to the hearing at which these reasons are published.
[10] See Supreme Court Civil Rules 2006 (Amendment No. 13).
[11] Re W (1997) 137 FLR 204 at 230-1; Kelson v Forward (1995) 60 FCR 39 at 43.
6R 9(2) is subject to the provisions of s 131 of the Supreme Court Act 1935 concerning public access to documents on the Court file, which relevantly provides as follows:
(1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of—
(aa)   any process relating to proceedings and forming part of the court's records;
…
(b)     any documentary material admitted into evidence in any proceedings;
…
(e)     a transcript of reasons for judgment (including remarks made by the court on passing sentence);
…
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the court:
(a)     material that was not taken or received in open court;
(b)     material that the court has suppressed from publication;
While the affidavits in support of FDNs 13 and 14 would otherwise be available to the public under sub-s (1)(b) once FDNs 13 and 14 have been heard, I consider that such affidavits also come within sub-s (2)(a), but not sub-s (2)(b), and so are not available for inspection other than with permission of the Court.
These reasons are to be available for public inspection under sub-s (1)(e), but in this edited form which should protect the defendants.
In the absence of a suppression order under s 69A of the Evidence Act, which would allow sub-s (2)(b) to operate, the pleadings are available for inspection under sub-s (1)(aa) as “process” of the Court.[12]
[12] Jackson v Johnson, White J, 11 May 2010, [2010] SASC 133.
Subject to any further submissions from the parties, when the matter next comes on for hearing, I will make the following orders:
1Pursuant to 6R 9(2)(b) FDNs 13 and 14 are to be heard in private until further order.
2Costs reserved.
3Fit for counsel.
4Plaintiff’s solicitors to bring in minutes of order on the next hearing dealing with the terms upon which the DNA testing will proceed.
5Adjourned to Friday 3 December 2010 at 9.45am.