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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading J v D Pty Ltd

Details

AGLC: J v D Pty Ltd [2010] SASC 318
Case: [2010] SASC 318
Decision Date: 17 November 2010

CaseChat Overview and Summary

In the case of J v D Pty Ltd, the plaintiff, who is the daughter of a deceased woman and the administrator of her estate, seeks to have a house transferred to her as part of her mother's estate. The defendants, which include the deceased's former partner and a company owned by him, oppose this claim. The plaintiff alleges that the second defendant made promises and representations to the deceased on which she acted to her detriment, either impressing a trust over the house in favour of the deceased or entitling 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. The legal issues in this case involve the interpretation of Rule 155, which allows the court to direct a party to submit to a relevant biological test if paternity is in issue in an action. The court must also consider whether the hearing of the plaintiff's application for DNA testing should be held in private and if the reasons for the judgment should be published with identifying information redacted.

The court held that the term "issue" in Rule 155 extends beyond matters forming part of a cause of action and includes issues on particulars under Rule 98(2)(b). The court found that the plaintiff's allegation that the second defendant is the father of her and her elder brother is an issue raised on the pleadings and not admitted by the defendants. The court concluded that it would not be in the interests of justice for the plaintiff to be required to prove the allegations without the possibility of DNA testing, as the deceased is no longer available to provide evidence. The court also found that the defendants' concerns about potential embarrassment were sufficient to exercise the discretion to order that the hearing of the plaintiff's application be held in private under Rule 9(2)(b). The court decided to edit the reasons for the judgment to avoid revealing the identity of the parties, but still allow them to be published and used as legal authorities and precedents.

The court made the following orders: 1) The hearing of the plaintiff's application for DNA testing will be held in private until further order; 2) Costs are reserved; 3) The matter is fit for counsel; 4) The plaintiff's solicitors are to bring in minutes of the order on the next hearing dealing with the terms upon which the DNA testing will proceed; 5) The case is adjourned to Friday 3 December 2010 at 9.45am.

Orders