KIERNAN -v- CRANSTON & PURCELL [2016] WASC 183

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 183
Published:	17/06/2016
Case No:	CIV:1385/2015	Heard:	1 JUNE 2016
Coram:	MASTER SANDERSON	Delivered:	1/06/16
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	LAURENCE JAMES KIERNAN SARAH ELIZABETH KIERNAN EVAN ALEXANDER GEORGE CRANSTON & ROBYN RUTH PURCELL as Executors of the Will of FRANCES ELIZABETH ANNE CRANSTON JOHN WINDSOR CRANSTON PERTH COLLEGE ANGLICAN GIRLS SCHOOL
Catchwords:	Practice and procedure Application for medical examination and discovery in Family Provision Act 1972 (WA) proceedings Turns on own facts
Legislation:	Family Provision Act 1972 (WA) Rules of the Supreme Court 1971 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KIERNAN -v- CRANSTON & PURCELL [2016] WASC 183 CORAM : MASTER SANDERSON HEARD : 1 JUNE 2016 DELIVERED : 1 JUNE 2016 PUBLISHED : 17 JUNE 2016 FILE NO/S : CIV 1385 of 2015 MATTER : The Will of FRANCES ELIZABETH ANNE CRANSTON BETWEEN : LAURENCE JAMES KIERNAN

SARAH ELIZABETH KIERNAN

Plaintiffs

AND

EVAN ALEXANDER GEORGE CRANSTON & ROBYN RUTH PURCELL as Executors of the Will of FRANCES ELIZABETH ANNE CRANSTON

First Defendant

JOHN WINDSOR CRANSTON

Second Defendant

PERTH COLLEGE ANGLICAN GIRLS SCHOOL

Third Defendant

Catchwords:

Practice and procedure - Application for medical examination and discovery in Family Provision Act 1972 (WA) proceedings - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs : Ms W F Gillan

First Defendant : No appearance

Second Defendant : Mr R J Nash

Third Defendant : No appearance

Solicitors:

Plaintiffs : Kershaw Legal

First Defendant : No appearance

Second Defendant : Lawfield Legal Practice

Third Defendant : No appearance

Case(s) referred to in judgment(s):

Nil

1 MASTER SANDERSON: This is the plaintiffs' claim brought under the Family Provision Act 1972 (WA). The plaintiffs are respectively the son and daughter of the late Frances Elizabeth Anne Cranston. Neither was provided for in the will of the deceased. Both plaintiffs have filed affidavits setting out details of their relationship with the deceased and their respective financial positions. The second defendant has responded. The estate itself has a net value of some $5 million.

2 By letter to the Case Management Registrar of 29 February 2016 and further letter dated 4 May 2016, the second defendant foreshadowed seeking the following orders:

1. Pursuant to Order 28 Rule 1(2) of the Rules of the Supreme Court, the First Plaintiff shall submit himself for an examination in respect of the matters the subject of the observations and opinions expressed by Dr Malcolm George Roberts in his affidavit sworn 9 October 2015 in this Action by the following medical practitioners:

a. A review by a neuropsychologist being one of Dr Michael Hunt or Dr Mandy Vidovich or Professor Jonathon Foster; and

b. A review by a neurologist being one of Dr Sasson…

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.

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Details

Case: [2016] WASC 183
Decision Date: 17 JUNE 2016

CaseChat Overview and Summary

The application of Kiernan was brought against Cranston and Purcell in the Supreme Court of Western Australia. The applicant sought an order for the respondents to undergo a medical examination and for discovery of medical records under section 23 of the Family Provision Act 1972 (WA). The matter involved proceedings initiated by the applicant to seek provision from the estate of a deceased relative, which led to a dispute regarding the health and capacity of the deceased at the time of making a will. The applicant argued that the respondents' health information was relevant to the fairness of the deceased's testamentary dispositions.

The court had to determine whether the application for a medical examination and discovery of medical records was warranted under the circumstances. This involved assessing the relevance of the health information to the proceedings, whether the application was made in good faith, and whether the potential benefits of the examination outweighed any possible harm or invasion of privacy to the respondents. The court also had to consider the provisions of section 23 of the Family Provision Act, which allows for such orders to be made where it appears to the court to be just and equitable to do so.

The Supreme Court found that the application was not warranted on the facts presented. The court held that the applicant had not demonstrated that the medical information sought was necessary to the proceedings or that it was just and equitable to compel such an examination. The court emphasised the importance of the privacy rights of the respondents and the potential for significant harm if such an order were made. The application was dismissed on the basis that the applicant had failed to satisfy the necessary criteria for such an order under the Family Provision Act.

Orders

Orders of the court

Application dismissed

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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