McComish v Sharpe - [2002] WASC 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McCOMISH & ORS -v- SHARPE & ANOR [2002] WASC 96

CORAM: MASTER BREDMEYER

HEARD: 11 MARCH 2002

DELIVERED : 29 APRIL 2002

FILE NO/S: CIV 1887 of 2001

BETWEEN: TIMOTHY LAURENCE McCOMISH
BRIAN JOSEPH PASS
First Plaintiffs
MELINDA EILEEN HENDRY
Second Plaintiffs
JACOB BRUCE SHARPE (AN INFANT BY HIS NEXT FRIEND MELINDA EILEEN HENDRY)
Third Plaintiff
AND
MYRNA ELIZABETH SHARPE
DONALD BRUCE SHARPE
Defendants

Catchwords:

Probate - Medical examination - Application for an order that a mother and child submit to a DNA test to establish paternity - DNA test being in the form of a mouth swab

Legislation:

Rules of the Supreme Court, O 28 r 1

Result:

Application allowed

Category: A

Representation:

Counsel:

First Plaintiffs               :     Mr T J Dixon
Second Plaintiffs           :     Mr T J Dixon
Third Plaintiff               :     Mr T J Dixon
Defendants:     Mr K F Sleight

Solicitors:

First Plaintiffs               :     Dwyer Durack
Second Plaintiffs           :     Dwyer Durack
Third Plaintiff               :     Dwyer Durack
Defendants:     Patterson & Dowding

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

S v McC; W v W [1972] AC 24

Case(s) also cited:

Angliss v Urquhart [2001] NSWCA 441
Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144
Cocks v Juncken (1947) 74 CLR 277
Crofts v State of Queensland [2001] QSC 220
Doodeward v Spence (1908) 6 CLR 406
Forde v Skinner (1830) 4 C & P 239
G v H (1994) 181 CLR 387
Govers v Luff [2000] NSWSC 509
Jones v Dunkel (1959) 101 CLR 298
Marshman v Antonia & Ors, unreported; SCt of WA (Scott J); Library No 970038; 13 February 1997
Moore v Regents of University of California (793 P 2d 479)
Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80; (1999) 21 WAR 191
Potter v Minahan (1909) 7 CLR 277
R v Luffe (1807) 103 ER 316
Re L (an infant) [1968] P 199
Re Riley [1996] 1 Qd R 209
Re the marriage of J & P (1985) 80 FLR 126
Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146
Sommersett's Case (1772) 20 How St Tr 1
The Banbury Peerage Case (1811) 1 Sim & St 153
The Public Trustee v Flegg & Ors [1998] WASC 349
W v W (No 4) [1963] 2 All ER 841
Weissensteiner v The Queen (1993) 178 CLR 243
Williams v Williams [1882] 20 Ch D 659

MASTER BREDMEYER: This is an application by the defendants which, as amended, is that the second plaintiff (Melinda) and her child, the third plaintiff (Jacob born on 14 October 1997) submit to DNA testing to establish whether the deceased, Gregory Allan Sharpe, is the father of the child, Jacob. Melinda has been asked to submit to this test, but will not consent. It is proposed that the tests be conducted by mouth swabs taken by a medical practitioner from Melinda and her child.
The factual background to this dispute is set out in the defendants' outline of submissions which I quote:
"1.Gregory Alan Sharpe ('the deceased') died in the Republic of Ghana on 16 April 1998.
2.The deceased died intestate.
3.The deceased's mother and father are the defendants MYRNA SHARPE and DONALD BRUCE SHARPE respectively.
4.The second plaintiff MELINDA EILEEN BENDRY ('Melinda') claims that the deceased is the father of her son, JACOB BRUCE SHARPE ('Jacob').
5.The child, Jacob, was born on 14 October 1997 (currently aged four).
6.On 26 October 1997 the deceased made a Statutory Declaration acknowledging that he was Jacob's father.
7.Subsequently, the deceased questioned the paternity of Jacob. Prior to his death, before he left Australia to travel overseas the deceased told his mother that he did not believe that he was Jacob's father and that he made enquiries about having a paternity test. The deceased told his mother that he intended to have such a test after he returned from overseas.
8.Jacob's birth was not registered until 20 April 1998, this being four days after the deceased's death and when Jacob was already six months old.
9.When the deceased's body was returned to Perth, his mother (MYRNA SHARPE) arranged for a DNA sample to be taken from him.
10.The estate of the deceased is a small estate, approximately $57,500.00."
If Jacob is the son of the deceased, then under the Administration Act 1903 (WA), he inherits the deceased's estate. If Jacob is not the son of the deceased, then the estate goes to his parents, who are the defendants.
Does the Court have power to make the orders sought? The defendants say "Yes" on two bases: (1) under the inherent or ancillary jurisdiction of the court, and (2) under O 28 of the Rules of the Supreme Court. Under the inherent jurisdiction, no case has been cited to me precisely on point. However, I have been referred to S v McC; W v W [1972] AC 24. The House of Lords held unanimously in that case that the court had power to order a child to take a blood test in order to help determine paternity.
The position is less clear in relation to an adult such as Melinda. In S v McC at 33, Lord Reid said:
"There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that the English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by couts d'etat but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions. It is true that the matter is regarded differently in the United States. We were referred to a number of state enactments authorising the courts to order adults to submit to blood tests."
Lord Hodgson said the same thing at 57.
After Lord Reid said that, he referred, at 45, to Pt III of the Family Law Reform Act 1969 which was not in force when he wrote his judgment, but which was about to come into force. Section 20(1) of that Act empowered County Court Judges and Magistrates to give directions as to blood tests. That part of the Act was brought into force later.
Lord MacDermott considered that the court had clear power in its "ancillary jurisdiction" to order an adult to submit to a blood test. I quote at length from his judgment at 46 ‑ 47:
"(1)Has the High Court jurisdiction to order that a blood test be taken Of B a person who is sui juris and a party to proceedings before it?
There can be no doubt today that samples of blood, when subjected to skilled scientific examination, can often supply helpful, and sometimes cogent, evidence on various issues arising in various types of litigation. But I think it must be accepted that, save where Parliament has otherwise ordained, the High Court has no power to direct that a person who is sui juris is to have a blood test taken against his will. That seems to have been the main reason why, in W. v. W. (1963) [1964] P. 67, Cairns J. and the Court of Appeal (Willmer, Danckwerts and Diplock L.JJ.) held that the court had no power to order blood tests for the purpose of determining the paternity of a child. But this lack of power on the part of the court to enforce its order physically without consent does not mean that the question under discussion must be answered in the negative, for much of the jurisdiction of the High Court can only be made effective by indirect means - such as a stay of proceedings, attachment or the treatment of a refusal to comply as evidence against the disobedient party. This is very much the case in one branch of the jurisdiction of the High Court, namely. its inherent jurisdiction to make interlocutory orders for the purpose of promoting a fair and satisfactory trial. I do not think there is now any question about the existence of this jurisdiction, which I shall refer to as the 'ancillary jurisdiction.' It may be procedural in character, but it is much more than that. It is a jurisdiction which confers power, in the exercise of a judicial discretion, to prepare the way by suitable orders or directions for a just and proper trial of the issues joined between the parties. It was a jurisdiction known to the Ecclesiastical Courts and to the superior courts before the Judicature Act 1873. By that time interrogatories and discovery of documents were well established examples; the Court for Divorce and Matrimonial Causes frequently ordered medical inspections in nullity suits raising issues of incapacity; and, perhaps the commonest instance of all, the courts would assist parties by granting subpoenas to secure the attendance of witnesses. This ancillary jurisdiction is, of course, subject to the limitations and modifications imposed by Parliament and, in particular aspects, it has been codified and replaced by rules of court. But that is not to say it has vanished. The rule book naturally tends to lag behind new methods of proof and ascertainment, and the essential purpose of this ancillary jurisdiction means that it cannot be tied to what is old or outmoded. For example, the increasing number of claims which put in issue the bodily condition of a party have in recent years produced what is now a very common demand by defendants, namely, that the claimant shall, submit to a medical examination. There is nothing about this in the rules of court; but the jurisdiction of the High Court to order such an examination cannot, in my view, be questioned in this day and age. See, for a recent example, Edmeades v. Thames Board Mills Ltd. [1969] 2 QB. 67, where the Court of Appeal ordered a stay until the plaintiff, seeking damages for personal injuries, submitted himself to a medical examination. Lord Denning M.R. stated the principle, thus, at p. 71:
'I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not.'
See also the decision of the Court of Appeal in Northern Ireland in Ross v Tower Upholstery Ltd. [1962] N.I. 3.
If such be the character of this ancillary jurisdiction, I know of no reason why the High Court should not in a proper case order a party who is sui juris to submit to a blood test. The probative value of such a test may vary according to circumstances and the nature of the material issue; and the relief sought is only to be granted in the exercise of a judicial discretion. But today there can be no valid distinction in principle between a blood test and a clinical examination, and no doubt that one as well as the other may be a powerful factor in determining the truth. In my opinion, this jurisdiction exists and applies to blood tests. I would therefore answer this question in the affirmative."
Lord MacDermott went on to consider the court's jurisdiction to order a blood test taken of an infant and came to the same conclusion. I quote from 47:
"(2)If so, has the High Court jurisdiction to order that a blood test be taken of an infant?
I can find no reason for thinking that what have called the ancillary jurisdiction becomes a dead letter simply because the person, whose physical state (including the state or grouping of his blood) is in issue, happens to be an infant. Take, by way of illustration, the case of a plaintiff seeking damages for negligence causing personal injuries, including a specific form of ill‑health which he alleges is a result of the injury‑producing event. The defendant, contending that this particular condition is of. long standing and was present before that event, satisfies the court that a blood test is likely to show whether or not this contention is well founded. If the plaintiff is sui juris and I am right in the answer to question (1), the court's jurisdiction to order such a test in the exercise of its discretion is clear. If, on the other hand, the plaintiff is an infant, that in itself would seem insufficient to oust the ancillary jurisdiction since, were it otherwise, the fact of infancy would endow the plaintiff with a special immunity which might very well work an injustice upon the defendant. I would therefore answer this question also in the affirmative. But accepting that the court in virtue of its ancillary jurisdiction has power to order an infant to be blood tested, does the fact of infancy govern the manner in which the court's discretion should be exercised? That brings me to the third question:"
To say, as Lord Reid and Lord Hodgson did, that the court at common law will not order an adult to take a blood test without his consent is true, but it is an incomplete truth. Lord MacDermott, in the passage quoted, completes that truth. What the courts cannot do directly, they do indirectly. Every day in the United Kingdom at that time, the courts ordered plaintiffs (adult and children) to undergo medical examinations, including blood tests. That was done in the interests of producing a fair and satisfactory trial. If the plaintiff does not obey the order - he will not be assaulted and held down while the blood is taken from him forcibly. But if he has no good excuse why he does not obey the order, there will be a stay or dismissal of his action. The court has that power as part of its ancillary jurisdiction. I agree with the views of Lord MacDermott. I consider the court in this State has jurisdiction to compel an infant to submit to a DNA examination. It also has power to compel an adult to submit to a medical examination, in each case without that person's consent. If that person does not consent, and he has no good excuse for refusing his consent, then the sanction to be applied is indirect. In the case of a plaintiff, it is, as I have stated, a stay or dismissal of his action.
As Lord MacDermott said in the passage quoted, only part of the court's ancillary jurisdiction has been codified and replaced by rules. Where rules exist, I think I am required to apply the rules and I propose to do so in this case. I propose to apply O 28 r 1. That rule provides:
"1. Medical examination of parties
Cf. W.A. O.XXX, R.15.
(1)(a) Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such first-mentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination. At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires.
(b)Where the party objects to complying with the notice, or in default of agreement as to the time and place of the examination, or if any matter shall arise in relation to such examination, either party may apply to the Court for an order as to whether or not the objecting party shall submit himself for examination, or as to when and where such examination may be made, or as to any other matters to facilitate the examination.
(c)If the Court is of opinion that either party has been unreasonable in the matter it may order that party to pay the costs of the application and any other costs unnecessarily incurred in consequence."
That rule has been in that form since at least 1971. I have a copy of the 1971 rules on my shelf and it shows that. DNA was not discovered then. But it is part of the court's job to apply old words to new situations and I think they fit well enough. The paternity of Jacob is certainly material. It is the one and only issue in this case. Who is entitled to get the administration of the estate, and who is entitled to inherit the estate, swings on the paternity question. The question of the "physical condition" of the mother and child, I consider extends to their genetic makeup.
An examination means a clinical examination, but also a blood test: see S v McC (supra) at 47. A mouth swab is much less risky and less invasive than a blood test. I conclude, then, the court has power to order the DNA tests.
The power is discretionary. Should it be exercised in this case? S v McC mentions that the Court should seek to protect the interests of the child in exercising the discretion. The discretionary factors in this case greatly favour an order being made.
(1)The Court has to determine the paternity of the child Jacob. Why should it not determine that question with the best scientific evidence available? Why should the Court decide a case on the less perfect evidence, when the better evidence can be obtained relatively cheaply and speedily?
(2)An order for DNA testing may very well achieve a settlement of this case. If the test shows the deceased to be the father, I would expect the defendants to withdraw their opposition to Melinda's application to become the administrator. If it shows the deceased is not the father, I would expect the plaintiff to withdraw her application for administration.
(3)It was argued for Melinda that this test could produce a trauma for Jacob. He has grown up believing that Gregory was his father and that belief may be exploded. I think that argument is specious on these facts. Jacob has never known his father. As I understand it, the father died without seeing him. If the DNA tests show that the deceased was not his father, Melinda may then attempt to take up a relationship with the true father, or she may not. If she does, Jacob may get a live father out of that, or he may not. Melinda may be able to get some child maintenance out of the true father. If the DNA tests show that the deceased is the father, Jacob may enjoy some love and support from the defendant grandparents.
If there is no DNA test and Melinda wins the case and establishes paternity on the other evidence, the defendants may never accept the Court's decision and may withhold any love and support from Jacob. They are more likely to accept a 99 per cent sure scientific test than a court order based on the balance of probabilities.