Johnson v Colangelo

[2010] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

JOHNSON v COLANGELO & ANOR

[2010] SASC 187

Reasons of Judge Lunn a Master of the Supreme Court

25 June 2010

PROCEDURE

DNA test for paternity - infant plaintiff seeks declaration under Family Relationships Act 1975 that deceased father of second defendant is also his father - application under 6R155(1) that second defendant undergo DNA testing - held Court could take judicial notice that such testing could provide evidence of paternity and the test was simple and expeditious - direction given for testing.

JOHNSON v COLANGELO & ANOR
[2010] SASC 187

JUDGE LUNN:

Reasons on plaintiff’s application that the plaintiff and the second defendant submit to parentage testing procedures

1. The plaintiff, Tarin Johnson, was born on 24 May 2004.  His mother is his litigation guardian, Lorna Johnson.  She alleges that Tarin’s father is Bernardo Colangelo (“the deceased”) who died on 13 April 2009.

2. Probate over the will of the deceased was granted on 25 August 2009 to the first defendant.  Under the terms of the will the sole beneficiary of his estate is the second defendant, who is an adult daughter of the deceased.

3. By the amended Summons in this action the plaintiff seeks a declaration under s 9(8) of the Family Relationships Act 1975 that the deceased was his father.[1]  Although the second defendant has not filed an affidavit as yet, her lawyers have informed the Court that she does not admit that the deceased is the father of the plaintiff.

   [1]    If such paternity is established, the plaintiff then seeks provision for himself out of the estate of the deceased under the Inheritance (Family Provision) Act 1972.

4. By an application issued on 19 May 2010, FDN12, the plaintiff seeks an order that he and the second defendant each “submit to a parentage testing procedure for the purposes of obtaining information to determine his” (paternity).  The application is made under 6R 155 which 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.

5. The second defendant opposes any order that she submit to any such testing.  She has not filed any affidavit in support of her opposition.

6. It was accepted by both counsel in argument that what is proposed is what is commonly known as DNA testing.  The plaintiff has not submitted any evidence about the nature or value of such DNA testing or how it will be carried out.

7. The second defendant’s principal objection to the making of the order was that there is no evidence before the Court from which it could be concluded that DNA testing of the plaintiff and herself could produce any worthwhile evidence about the paternity of the plaintiff.  The plaintiff’s counsel submitted that the Court could take judicial notice of the use of DNA procedures for paternity testing sufficient to resolve the application in favour of the plaintiff.  The second defendant submitted to the contrary.  Neither counsel cited any authority on what, if any, judicial notice the Court could take about DNA testing.

8. In the past 10-15 years DNA evidence has been adduced in trials with increasing frequency, and particularly in the criminal court.[2]  It has also been adduced in many civil trials in recent years in this Court and the District Court including on issues of paternity.[3]  I am aware that in recent years in most actions in this Court under the Family Relationships Act in which paternity is in issue a DNA test has been carried out, although this is the first case of which I am aware in which a party has not consented to submit to DNA testing.  Most of the reported cases on DNA testing focus on how conclusive the results of DNA testing can be on issues such as identity, paternity and blood relationships.[4]  The question here is not so much the weight which can be given to DNA evidence, but whether it has sufficient probative value to be admissible and is of sufficient potential weight to justify putting the second defendant to the inconvenience of submitting to DNA testing.  As far as I am aware, there is no authority on taking the judicial notice about DNA testing in the absence of expert evidence about it being adduced in the case.

   [2]    Between about 1998 and 2004 I conducted as a District Court Judge several criminal trials in which extensive DNA evidence was adduced.

   [3]    Here I am not concerned with whether the evidence was accepted, but merely that it was treated as admissible.

   [4]    See generally R v Karger (2001) 83 SASR 1 and 135; Criminal Law South Australia Volume 1 para [300.2(6)].

9. Judicial notice can be taken of facts which are so generally known that every ordinary person may reasonably be presumed to be aware of them.[5]  The facts must be so notorious as not to be capable of dispute among reasonable people.[6]  Where evidence of matters is regularly adduced before Court through experts, and is almost invariably accepted without question, the point is reached where the Court can take judicial notice of the basic facts without having to have it tediously proved by scientific evidence in every case.  For example, the harmful effects of drugs such as cannabis and heroin were so regularly put before the courts by expert evidence that courts came to act on these matters without formal proof by taking judicial notice of them, although any controversial matters still had to be proved by expert evidence.[7]  In my view, a similar position has been reached about the basic nature and potential of DNA testing so that courts can take judicial notice of them.

   [5]    Holland v Jones (1917) 23 CLR 149 at 153.

   [6]    Common Shipping Representative v P&O Branch Service [1923] AC 191 at 212.

   [7]    R v Gibson (1993) 61 SASR 151 at 152.

10. To resolve this application I need to do no more than take judicial notice of the following, if it is proper to do so:

    ·DNA testing provides a means of obtaining admissible evidence of whether two persons are related or not by blood;

    ·DNA tests of a male and a female can provide evidence whether they have a common father or not, even though they have different mothers;

    ·such DNA tests are simple to perform and can be done expeditiously.

11. I emphasise that all I am being asked to take judicial notice of is that such DNA testing can provide some probative evidence about the plaintiff’s paternity.  It does not have to be evidence of any great weight.  I hold that I can take judicial notice in the circumstances of this matter of the three points mentioned above.

12. The discretion conferred under R155(1) is to be exercised to secure the administration of justice by affording to litigants a proper opportunity of effectively proving their claims or making good their defences.[8]  There is no suggestion such DNA testing would cause any harm or prejudice to anyone.  Hence a strong case is not needed to persuade the Court to order it.

    [8]    Western v Male, Full Court, 28 May 2010, [2010] SASC 163. Although this case was a decision on 6R153 about medical examinations, what was said there also applies to 6R155.

13. There was no evidence that there would be any particular inconvenience or prejudice to the second defendant to submit to the proposed DNA test.  I assume it would require her to attend at some premises of Medvet in Adelaide and there to provide the necessary DNA sample.  This should be no more than a minor inconvenience for her.  The potential probative value of DNA testing of the plaintiff and the second defendant is likely to be sufficient to justify this minor imposition on the second defendant.

14. Counsel for the second defendant submitted that R155(3) could provide an unsatisfactory result for her if she declined to comply with the order.  What inference is to be drawn under sub-r (3) will be a matter for the trial Judge.  However, the trial Judge will doubtless take into account the financial interest which the second defendant has in the matter.  Her position is not the same as other blood relatives of the deceased.

15. Requiring the plaintiff to submit to such DNA testing is following the conventional and reasonable course of most actions under the Family Relationships Act.  If the results of these DNA tests, assuming that the second defendant submits to them, and that there is at least substantial doubt that the deceased was the father of the plaintiff, the litigation guardian would be required to review seriously whether she should pursue the action.

16. Accordingly, I grant the application and will direct the second defendant to submit to DNA testing.  The plaintiff should bring in minutes of order setting out the arrangements for the testing of the second defendant.  I will also hear the parties on the question of costs.